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Crim Pro > 4th Amendment > Flashcards

4th Amendment Flashcards

1
Q

Rule re: non-resident alien’s property in foreign country

A

4th Amendment doesn’t apply. Protections apply to citizens/people/property in the U.S.

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2
Q

Elements of the 4th Amendment

A 
Reasonableness Clause
Warrant Clause
Exclusionary Rule
Probable Cause
Search & Seizure
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3
Q

Search requirements

A

Probable cause: shown through either a warrant or through an exception

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4
Q

Katz Reasonable Expectations Test

A
  1. Has the citizen manifested a subjective expectation of privacy? AND
  2. Is the interest one that society is ready to accept as reasonable? (Objective)

If yes to both, a search has occurred.

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5
Q

Is there a legitimate expectation of privacy in contraband?

A

No. (Place)

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6
Q

Jones Trespass Rule/Test

A

Police activity is a search if it involves:

  1. Trespass or physical intrusion
  2. In/On a constitutionally protected space/thing
  3. Investigatory purpose

Jones involved trespass onto car with GPS tracker for 4 weeks w/o warrant —> search.

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7
Q

Interests protected under the 4th Amendment

A

Interest in being free from physical disruption/inconvenience
Interest in keeping info private
Interest in having control over and use of property

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8
Q

Canine Sniffs?

A

NOT searches.

Porch/Jardines: Sniff on porch without a warrant, dog alerted, basis for warrant = search. Method is key.
Luggage/Place: Canine sniff at airport not a search because only alerting to illegal activity, not saying what’s in there. Search happens when LE opens the bag. Airport is public space.
Traffic Stop/Caballas: No reasonable/articulable suspicion needed for LE to use dog at traffic stop.

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9
Q

Location Data?

A

Apply Katz
Carpenter: Individual maintains expectation of privacy in their location data = search, even though LE got the data from a third party.

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10
Q

Third Party Doctrine

A

No search where police obtain information that members of the public can obtain. Assumption of risk.
Examples: trash, abandoned property, pen registers, financial records w/ bank

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11
Q

Open Fields?

A

No legitimate expectation of privacy in an open field. No societal interest in protecting activity in open fields. Consider though how close it is to home….within curtilage?
Oliver: LE jumped over fence to look into the field. Not a search.

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12
Q

Determining Curtilage Factors

A

Proximity to home
Whether included within an enclosure surrounding the home
Use of area
Steps taken by the resident to protect the area from public observation

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13
Q

Aerial surveillance?

A

Technically space above property is something public has access to, so it’s ok for LE to access it. Flyovers are ok too. Court doesn’t care that few members of public have access to helicopter/plane.

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14
Q

Carryon Baggage

A

Police can look at/feel baggage to the extent reasonable members of the public would expect it from anyone.
Bond: Became a search when officers were manipulating the bag trying to figure out what was inside.

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15
Q

Thermal imaging?

A

Kyllo: Search. Police were using tech to gain info about the inside of the house, which is protected by the 4th Amendment.

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16
Q

Electronic tracking?

A

Search if cops are monitoring activity within the house (Karo)
Not a search if the beeper/tracker reveals info police could’ve otherwise gotten from visual surveillance (Karo)

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17
Q

Films misdelivered to private citizen, who gives them to police. Search?

A

Yes. Police can receive them but need a warrant to view them. (Walker)

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18
Q

Cops re-open package that FedEx employee had opened and finds cocaine. Search to test it? Search to open the box at all?

A

Search to test it. Chemical test can only tell whether it’s cocaine. Can’t test for anything else.
Search to open it if the cops open it beyond the initial intrusion by the private citizen (but in this case, not a search because no legitimate privacy interest in cocaine due to Congressional action, so Katz not satisfied).

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19
Q

Do prisoners have a constitutionally protected expectation of privacy?

A

Not in their cell, but they do of their person. Strip searches/body cavity searches have to be governed by reasonableness under the circumstances. (Hudson)

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20
Q

Do students have an expectation of privacy at school?

A

Yes, in their belongings, but it is diminished due to interest in safety and subject to reasonableness as any gov’t intrusion is. (NJ v. TLO)

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21
Q

Do gov’t employees have a privacy expectation at work?

A

Unclear about office in general, but definitely in desk/filing cabinets/personal effects. Still, reasonable searches/seizures are permitted. (Ortega)

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22
Q

Warrant Requirements

A

Proof: Probable cause is the threshold
Oath: PC shown by sworn affidavit
Specificity: What is to be searched and what LE is looking for

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23
Q

Warrant Requirements for Home

A

You always need one absent exigent circumstances. Even if you have PC, a search of a home w/o a warrant is per se invalid.

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24
Q

How to establish PC to search?

A

Fair probability that area or object searched contains evidence of a crime. Magistrate makes this determination.

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25
Q

Is confession of an accomplice enough to establish PC?

A

Yes

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26
Q

Can equivocal activity establish PC?

A

No, not when it could be criminal or normal. More info needed. Question is whether reasonable person would think the activity is highly suspicious. Then, ask whether a probable innocent explanation significantly outweighs they possibility of criminal conduct.

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27
Q

Spinelli Test for Proving Reliability of Informant

A
  1. Who is the source of the info, and is the source reliable?
  2. What are the bases and details of the source’s knowledge?

Overruled by Gates. Now only applies to warrant applications in which the police rely on tipsters who operate as paid informants or anonymous informants because the reliability of these two categories is most questionable.

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28
Q

Current Test for Whether Tip is Sufficient to Establish PC

A

Gates Totality of the Circumstances. Looking at veracity and basis of knowledge of tipster. We want a tip that makes a specific prediction and then the prediction comes true.

Factors:
Nature of Info
Have police seen/heard about the info in the tip? Basis of informant’s knowledge
Veracity of informant
Independent verification of matters reported (corroboration)
Credibility of the informant.

Spinelli was too rigid. Something can fail Spinelli and pass this. The main difference is Gates gives you room to corroborate tips to establish PC.

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29
Q

Paid informants - reliable?

A

Presumptively unreliable given their dubious character and financial arrangements

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30
Q

Anonymous informants - reliable?

A

Presumptively unreliable because they mask their identity but unclear why

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31
Q

Identified informed citizens - reliable?

A

Considered reliable because they are presumed to be motivated by concern for safety/society.
Obviously some issues with this reasoning.

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32
Q

Drugs found in a car. Can you arrest everyone in the car?

A

Yes, PC sufficient because anyone in the car could be exercising dominion/control over the drugs. Assumption of collective enterprise.

This is Pringle where cops stopped under pretext, saw drugs in glove compartment when suspect opened it, and then had PC to search/arrest.

But see Ybarra where cops can’t arrest everyone in bar just because they had warrant to search the bar.

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33
Q

Is a dog sniff enough for PC?

A

Not alone. Can’t search based on dog sniff w/o warrant because it violates 4th Amendment since dog sniff alone isn’t enough for PC. But, TOC could make it enough when considering dog training, suspicious behavior of D, etc. (Florida v. Harris)

34
Q

Mistaken arrest - ok?

A

If police have PC to arrest person 1 and they have PC to believe that person 2 is person 1, they acted properly in arresting person 2. (Hill v. California)

35
Q

Arrest valid if officer had PC to arrest D for a crime, but that crime isn’t the crime for which D was ultimately charged?

A

Yes. The defense establishing PC doesn’t have to be closely related to, and based on the same conduct as, the offense identified by the arresting officer at the time of the arrest. (Devenpeck)

36
Q

Is info stale? Considerations

A

How much time has passed?
Maturity of info
Nature of crime (discrete or ongoing)
Nature and function of premises to be searched

No PC if the info is stale. Even if the info is stale, it can be corroborated to be resurrected.

37
Q

Can you search non-suspect’s premises?

A

Yes, if you have PC to believe evidence of the crime will be found there. (Zurcher)

38
Q

Purposes of the Reasonable Particularity Requirement

A

Control on officer discretion
Record of probable cause
No limitless searches

39
Q

Sufficient Reasonable Particularity Requirement Standard

A

The location to be searched must be defined with reasonable particularity to get a warrant. Reasonable particularity necessary depends on the nature of the place to be searched, the nature of the info that an officer could reasonably obtain about them and the information an officer could reasonably obtain about the location before the warrant is issued.

Description depends on the environment (urban v. rural). Allows for reasonable mistake of fact. You also must define with sufficient particularity what you are looking for, but a catch all phrase referring to anything related to a specific crime is ok. Over-broad portions can be severed from the rest of the warrant to suppress things taken using that provision.

40
Q

Can a good warrant lead to an unreasonable search?

A

Yes, if a warrant is executed improperly and the terms aren’t followed, then the search is unreasonable.

41
Q

Anticipatory Warrants

A

Available when you don’t upset have PC but specify a triggering even that will give it to you. Has to contain explicit conditions to limit the discretion of officers in determining whether the triggering event has occurred.

42
Q

Types of Warrants

A

Sneak and Peek
Knock and Announce
No Knock

43
Q

Sneak and Peek Warrant

A

Agents can enter covertly. Delays notice of search if gov’t can show there’s reasonable cause to believe that providing notice will endanger life or physical safety or otherwise affect the government’s ability to search.

44
Q

Knock and Announce

A

To comply with the notice requirement, police must identify themselves as police and indicate they are present for the purpose of executing a search warrant, after which they can enter (wait for answer; no answer = enter).

This is the notice rule. Not rigid constitutional rule, so doesn’t necessitate suppression if violated. (Hudson v. MI)

Reasonableness is the standard in evaluating whether unannounced entry is valid.

No violation if door is unlocked.

45
Q

No Knock Warrant

A

Allowed if there is reasonable ground to expect futility or to suspect that one or another exigency already exists or will arise instantly upon knocking (harm to officers, destruction of evidence, etc.). Standard for showing this is reasonable suspicion (but still need PC for warrant itself).

46
Q

Exigent Circumstances Exception

A

No warrant needed for situation that triggers exigent circumstances, such as pursuit of suspect, destruction/loss of evidence, risk to police/public safety. (Watson)

47
Q

Reasonable Particularity Requirement for Arrest Warrants

A

An arrest warrant must describe the person to be seized with sufficient particularity.

48
Q

Does an officer need a warrant to make a public arrest?

A

No, the officer can make an arrest where he has RS to believe a felony has been committed, or if a felony or misdemeanor was committed in his presence. Doesn’t matter if officer could’ve easily obtained warrant.

49
Q

Can police use force in making an arrest?

A

Yes, but deadly force can only be used if necessary to prevent the escape of a felon where the officer has PC to believe the suspect poses a threat of death or serious bodily injury to others. (Tennessee v. Gardner)

50
Q

Standard Governing Claims of Excessive Force

A

4th Amendment reasonableness. Consider whether suspect was trying to flee, threat to public safety, severity of crime, etc.

51
Q

McLaughlin Rule

A

If an officer makes a warrantless arrest, a prompt hearing to establish is required, so anything up to a 48 hour delay between the arrest and the hearing is reasonable. After 48 hours, burden shifts to gov’t to justify delay.

52
Q

Warrant Details Required under FRCP 41(e)(2)(A)

A

Identify person/property magistrate to be searched
Execute it promptly (no longer than 14 days later)
Execute it during day time (6 AM - 10 PM)
Return the warrant to the designated magistrate

53
Q

The Payton Home Arrest Rule

A

Absent exigent circumstances, the police cannot enter a person’s home to arrest him without a warrant. If they want to search the home during the arrest, they need a warrant.

54
Q

Rule for Arrests in the Home of a Third-Party

A

A search warrant must be obtained to look for a suspect in the home of a third party, absent exigent circumstances or consent, because an arrest warrant doesn’t sufficiently protect the third-parties interests

*Doesn’t apply to co-residents.

55
Q

What’s needed to arrest an overnight guest?

A

An arrest warrant is needed to arrest a person who was an overnight guest in the home of a third party under Payton. A search warrant is also required to protect the homeowner under Steagald.

56
Q

What’s needed to arrest a temporary visitor?

A

Nothing. Individuals who are on the premises of a third party for commercial purposes, a short period of time, or without any previous connection to the third party have no expectation of privacy that would trigger 4th Amendment. (Carter)

57
Q

When does an encounter become a stop?

A

Under Mendenhall, when the person is no longer free to leave. Still, it’s ok to stop someone as long as you have RS. If no RS, unreasonable seizure.

58
Q

When can an officer conduct a Terry Stop?

A

If the officer has reasonable suspicion that a suspect is armed and dangerous and proses a threat to public of officer safety, they may stop and do a limited search outside of the clothing (places where weapons can be kept). No probable cause required.

59
Q

Mimms/Wilson Traffic Stop Rule

A

Officers in the course of a legal stop of a car have an automatic right under Terry to order the driver and passengers out of the car. Bright-line rule. No RS/PC needed.

60
Q

Can an officer perform a protective frisk of passengers during a routine traffic stop?

A

Yes, upon reasonable suspicion that they may be armed and dangerous. No automatic power to frisk. (Arizona v. Johnson)

61
Q

Factors in Assessing whether person was free to leave

A

Location of encounter (public space?)
Did officers touch him? Touch = stop
Officers uniformed or in plain clothes?
How long did the officers retain any personal effects, if applicable
Whether officers advised suspect he had the right to terminate the encounter or refuse consent

62
Q

How to establish reasonable suspicion for a stop?

A

Totality of the circumstances, including LE’s own common sense. Much lower standard than PC. You can use Gates if there’s an informant/tip, but obviously don’t have to meet the same bar as establishing PC through Gates for warrant.

63
Q

Terry’s Implications for Property

A
  • Non-material interference: Like an encounter. Doesn’t implicate 4th Amendment. (Example: detaining of your luggage coming off plane so your bag is last)
  • Temporary interference: Interference with your possessory interest. Requires RS. Like a stop.
  • Detentions so lengthy they require PC, like in Place where his luggage was seized and he couldn’t leave without it so he was seized.
64
Q

Factors in determining whether detention was so prolonged as to require PC

A
  • Whether officers were reasonably diligent in conducting investigation
  • Length of detention and whether liberty/possessory interests were at stake (50-80 min = unreasonable)
  • Whether suspect is given info about the seizure (like when he can get the property back)
65
Q

Grab Area Rule

A

Bright line rule that warrantless search incident to a valid arrest is always permitted regarding the grab area of the suspect. (Chimel)
Grab area defined at the time of search.

66
Q

Plain View Doctrine

A

Officer can seize evidence during protective sweep found in plain view.

67
Q

Search of Probationers and Parolees

A

RS not required. Diminished expectation of privacy.

68
Q

Protective Sweep

A

Can be conducted if officers have articulable facts that give rise to RS that a search is necessary to protect officers/other people. Can extend beyond the person/grab area. BUT you can’t use it to look for evidence.

69
Q

Search of Person Incident to Arrest

A

Automatic right once someone is lawfully arrested. Search their person, including containers found on them.
Different from Terry Stop because you have PC to arrest here and safety interest is higher.

70
Q

Terry Stop

A

An officer can stop and frisk a person to look for weapons upon reasonable suspicion, but he can’t look for evidence.

71
Q

Belton Arrest Power Rule

A

When the occupant of a car is lawfully arrested, LE is allowed to automatically search the passenger compartment of the car.
Application of Chimel to cars – passenger compartment is grab area.
This does not include the trunk.
Doesn’t extend to situations where D is already out of car and LE has no reason to think weapons are in the car or evidence of a crime. (Gant)
But does apply where D already exited vehicle and was arrested, but LE thought evidence might be in the car. (Thornton)

72
Q

Can you search a cellphone incident to arrest?

A

No, not without a warrant or unless exigent circumstances apply (Riley)

73
Q

Do you need a warrant to use a breathalyzer?

A

No, allowed as a search incident to arrest under Birchfield, but a blood test is more invasive and requires a warrant.

74
Q

When can an officer seize things in plain view?

A

When he is already lawfully there through warrant and the criminal nature of the item is apparent

75
Q

Plain Touch Doctrine

A

The 4th Amendment permits the seizure of evidence discovered through the sense of touch in the course of a lawful search, but the plain touch exception may not apply if the officer exceeds the bounds of a Terry frisk (no poking and prodding to figure out what it is).

76
Q

Carroll Automobile Exception

A

Police may search an automobile without a warrant so long as they have probable cause to believe that it contains evidence of criminal activity. Still doesn’t apply to trunks.

77
Q

Types of Exigent circumstances

A
  1. hot pursuit
  2. police and public safety
  3. destruction of evidence
78
Q

Establishing exigency

A

TOC test - consider:

  • Gravity of offense involved
  • Whether suspect is reasonably believed to be armed
  • Clear showing of probable cause that suspect committed a crime
  • Suspect is probably on the premises being entered
  • Likelihood that suspect will escape if not quickly caught
  • Circumstances of entry

Requires factual showing!

79
Q

Assessing Validity of Consent

A

TOC analysis whether it was voluntary:

  • Custodial status of suspect
  • Coercive police procedures
  • Suspects cooperation with the police
  • Awareness of right to refuse consent
  • Suspects education and intelligence
  • Suspects belief that no evidence will be found
80
Q

The Exclusionary Rule

A

All evidence obtained by illegal searches and seizures is inadmissible in court. (Mapp v. Ohio)

81
Q

Are courts required to exclude evidence when a search or seizure violates the 4th Amendment?

A

The exclusionary rule is about deterring bad police conduct. If the conduct could not be deterred, then the exclusionary rule doesn’t matter as much/should not apply. Still, courts aren’t constitutionally required to exclude illegally obtained evidence.

82
Q

Exceptions to the Good Faith Rule

A

Good Faith Exception: Police relied on warrant that was issued without probable cause. The exclusionary rule did not apply because they did so in good faith. (Leon)

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