4th Am_Search & Seizure Flashcards
5 GLOBAL ISSUES
What are the 5global issues to a 4th Am Search and Seizure analysis?
1) Whether a search/seizure is governed by the 4th Am;
THRESHOLD QUESTIONS
ASK (1,2, and 3) OR
ASK (1,2,4, and 5)
OR
AND
THRESHOLD QUESTION #1
Is the search or seizure in question governed by the 4th Amendment?
When is a search or seizure governed by the 4th Am?
A search/seizure is governed by the 4th Am when ALL of the following 4 situations exist…
1) It’s conducted by a gov’t agent which includes:
(i) Publicly paid police officers (on- or off-duty)
(ii) Private citizens IF AND ONLY IF they are acting at direction of police (iii) Private security guards BUT ONLY IF they are deputized w/the pwr to arrest (iv) Public school administrators (e.g. principals, etc)
AND
2) The search/seizure was in an area protected by the 4th Am since the 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 front porch, and backyard-only if enclosed by a fence) (iii) Papers (e.g. personal correspondence) (iv) Effects (i.e. personal belongings)
BUT the 4th Am does NOT protect objects knowingly exposed to 3d parties, like…
(P) Physical Characteristics (Voices, Handwriting Styles)
(O) Odors (including odors emanating from car or
luggage)
(G) Garbage left at the curb for collection
(O) Open Fields - Anything that can be seen IN or
ACROSS the "open field"
(F) Financial Records / Account records at a bank
(A) Anything that can be seen from airspace
(P) Pen Registers (devices that list the telephone
numbers someone has dialed)
Mnemonic: “P-ublic O-bservation G-enerally O-bliterates
F-ourth A-mendment P-rotections”
AND
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) —known as the Trespass Based Test;
OR
(ii) VIOLATED an individual’s reasonable expectation of privacy in a protected area/item—known as the Privacy Based Test
→ To meet this std, an individual must show
(i) an ACTUAL or SUBJECTIVE expectation or privacy;
AND
(ii) the privacy expectation is “one that society
recognizes as reasonable” → A police search is presumptive 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
QUESTION #2
Does the person have standing?
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 ALWAYS 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 have 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
QUESTION #3
Did the search and seizure performed pursuant to a search warrant satisfy fourth amendment requirements?
When is the 4th Am warrant req satisfied? NOTE: NY Distinction
To satisfy 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 and particularity
PROBABLE CAUSE
→ 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 veracicty/reliability; AND
(ii) the informant’s basis of knowledge (NOTE: if basis is unkwn, the police can est thru corroborating evidence)PARTICULARITY → Particularity reqs"no fishing expeditions"; the warrant →MUST specifiy: (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
(iv) 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) IF the warrant is NOT DEFECTIVE THEN IT MUST BE PROPERLY EXECUTED AS FOLLOWS…
→ A warrant is properly executed by compliance w/ the warrant’s terms and limitations:
(i) officers are allowed to search ONLY those areas/items specified in the warrant
(ii) Officers are allowed to detain occupants within or immediately outside the residence at the time of search
(ii) Knock and Announce” rule: requires 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
QUESTION #4
Was the WARRANTLESS search through which evidence was gathered VALID under the any of the 8 EXCEPTIONS to the warrant requirement?
What are the 8 exceptions to the warrant requirement of the 4th Am?
“ESCAPIST”
8 EXCEPTIONS "ESCAPIST" (E) Exigent circumstance (S) Search incident to arrest (C) Consent (A) Automobile (P) Plain view (I) Inventory (S) Special needs (T) Terry "stop and frisk"
“ESCAPIST”
(E) EXIGENT CIRCUMSTANCE
What is the”exigent circumstances”exception to the warrant requirement of the 4th Am?
To qualify as a valid exigent circumstances exception to the warrant requirement, one of 3 types of situations must exist…
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
“ESCAPIST”
(S) SEARCH INCIDENT TO ARREST
What are 5reqs for the”search incident to arrest”exception to the warrant requirement of the 4th Am?
NOTE: NY Distinction
A valid search incident to arrest, requires..
ARREST
1) A valid/lawful arrest (“custodial arrest”)
JUSTIFICATION
2) Justifications of officer safety; AND the need to preserve evidence
TIMING
3) A search that is both CONTEMPORANEOUS IN TIME AND place w/ the arrest
GEOGRAPHIC SCOPE
4) A search that is 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.
(i) A search that only examines a CELL PHONE’S Physical aspects to ensure that it is not a weapon but that DOES NOT search DIGITAL DATA
(ii) A search that takes the DNA Evidence of a suspect by swabbing the cheek ONLY when the individual is arrested for a SERIOUS OFFENSE
* ***NY DISTINCTION: to search containers w/in the wingspan, an officer MUST suspect that the arrestee is ARMED
5) A search that follows the rules for an automobile incident to an arrest, which requires that an officer MUST:
(i) Search w/in a permissible scope, including the interior cabin of the car (and closed containers therein), BUT not the trunk
(ii) Follow “Secured” arrestee rules which allow that 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
“ESCAPIST”
(C) CONSENT
What are 2reqs for the”consent”exception to the warrant requirement of the 4th Am?
To be valid…
STANDARD
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
SCOPE
2) the 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)…BUT if the objecting party is removed for reasons unrelated to the refusal then the remaining co-tenant’s consent will suffice.
“ESCAPIST”
(A) AUTOMOBILE
What are 2reqs for the”automobile”exception to the warrant requirement of the 4th Am?
To be valid…
STANDARD
1) the police officer must have PC to believe that CONTRABAND or EVIDENCE of crime will be found in the vehicle;
SCOPE
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 (e.g. searching a car for a stolen TV will allow PC for searching the trunk but it will not allow PC for searching a bag in the trunk)
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 acquirors PC BEFORE the search is initiated
ON BAR EXAM PAY ATTENTION TO THE SEQUENCE OF EVENTS!!
“ESCAPIST”
(P) Plain View
What are 3reqs for the”plain view”exception to the warrant requirement of the 4th Am?
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; AND
3) the criminality of the item must be IMMEDIATELY apparent
(e. g. following a fleeing felon into a house and searching the closet for the felon allows for lawful access to illegal items in the closet IN PLAIN VIEW but not in a backpack b/c the felon herself could never fit into a backpack!)
“ESCAPIST”
(I) INVENTORY
What are 3reqs for the”inventory”exception to the warrant requirement of the 4th Am?
For an inventory search to be constitutional…
1) the regulations governing them must be REASONABLE in scope;
2) the search ITSELF must comply w/ those regulations;
AND
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)
NOTE: inventory searches most commonly apply in 2 contexts:
(i) when an ARRESTEE is booked into jail; AND
(ii) when a VEHICLE is impounded
“ESCAPIST”
(S) SPECIAL NEEDS
What are 4 “special needs” exceptions to the 4th Am warrant requirement?
What is the Special Needs Test (Non-Law Enforcement Primary Purpose Test)
There are 4 “Special needs” EXCEPTIONS of law enforcement, gov’t employees 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: 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),
NOTE: 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 U.S. citizens nor non-citizens have ANY 4th Am rights AT THE BORDER wrt ROUTINE searches of persons and effects
5) Non-Law Enforcement Primary Purpose Test:
The “special needs” doctrine does not include law enforcement programs or practices whose primary purpose is to gather CRIMINAL EVIDENCE for use by law enforcement
“ESCAPIST”
(T) TERRY STOP
What is a Terry stop?
NOTE: NY Distinction
A TERRY STOP =
(i) a brief WARRANTLESS detention (“seizure”)
(ii) based on REASONABLE SUSPICION (specific and articulable facts)
(iii) thatCRIMINAL ACTIVITY is present
Terry stops can take place ANYWHERE (e.g., on the street, in a car, at the airport, etc)
REASONABLE SUSPICION
→ 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
→ An officer’s SUBJECTIVE INTENT is irrelevant in evaluating legality of stop – only look at OBJECTIVE REASONABLENESS
SEIZURE
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 and “SEIZURE
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
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
→ NOTE: Dog sniffs at traffic stops are permissible PROVIDED the “sniff” does not prolong the stop unreasonably
“ESCAPIST”
(T) TERRY FRISK
What is a Terry frisk? NOTE: NY Distinction
TERRY FRISK =
(i) A WARRANTLESS pat down of the body and outer clothing for weapons (which can lead to a seizure)
(ii) based on a REASONABLE SUSPECION (specific and articulable facts) that the suspect is ARMED and DANGEROUS(safety-based rationale)
REASONABLE SUSPICION
→ 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
SEIZURE
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. feeling through plastic bag or 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)
TRAFFIC STOP
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
HOME ARRESTS
“Protective sweeps” during home arrests: officer may “sweep” the residence looking for criminal confederates of the arrestee whose presence may threaten officer safety
→ NOTE: Officers may “sweep” the area IMMEDIATELY adjorning 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
QUESTION #5
Can evidence be admissible in court EVEN IF the evidence is obtained thru a violation of the 4th Am?
What is the exclusionary rule for evidence obtained from an Unconstitutional search/seizure under the 4th Am
(and what are the limitations on the exclusionary rule)?
EXCLUSIONARY RULE
GENERAL RULE =
Direct OR derivative evidence, whether physical or testimonial, that is obtained in violation of federal statute or a const. prvn is INADMISSABLE in ct against the individual whose rights were violated
LIMITATIONS to the exclusionary rule:
1) Case-in-Chief vs. Cross-Examination:
Unconst obtained evidence is excluded from the prosecutor’s case-in-chief ONLY; it MAY still 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)
