4th Amendment

Question 1

4A & 14A

Answer 1

4A provides ‘the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon PC, supported by oath or affirmation, and particularly describing the place to be searched and the person/things to be seized.’ 4A has been incorporated to apply to the states through the 14A Due Process Clause.

Question 2

Gov Conduct

Answer 2

4A protections only apply to gov actions. Gov actors are publicly paid police and citizens acting on the police’s direction. (Privately paid officers are not gov actors unless they have been deputized.)

Question 3

Standing

Answer 3

D must have standing to challenge a gov action. Standing arises if D has a reasonable & justifiable expectation of privacy (REP) in the item or place searched. A person always has a REP if she owns, has possession of/lives in, or is an overnight guest at, the place searched. A person does not have a REP in items held out to the public (public conversations, handwriting, car paint, account records held by the bank, location of vehicle on public thoroughfares, abandoned property, open fields, flyovers, odors)

Question 4

Open Fields

Answer 4

areas outside the curtilage (area immediately surrounding the home) are subject to police entry & search b/c they are held out to the public. (factors: proximity to home, is the area used for home activities, is the area enclosed, & any steps taken by the resident to protect the area from the view of passersby)

Question 5

search

Answer 5

gov intrusion of an areas where a person has a REP.

Question 6

seizure

Answer 6

the exercise of control by the gov over a person or thing. A person is seized when, under the TOTC a reasonable person would not feel free to leave or terminate the encounter. There must be a physical application of force by the officer or a submission to the officer’s show of force.

Question 7

arrest

Answer 7

occurs when the police take a person into custody against her will for purposes of prosecution or interrogation. Must be based on PC.

Question 8

valid warrant

Answer 8

A search/seizure generally must be made pursuant to a valid warrant, which is:

Issue by a neutral & detached magistrate – unbiased.
Be based on probable cause (PC) - is present when, under the TOTC, the officer has trustworthy facts sufficient for a reasonably prudent person to believe that a suspect committed or is committing a crime, or that incriminating evidence will be found in the particular place to be searched. Use of Informants – To satisfy PC by an informant’s tip, the judge must determine by the TOTC that the information is credible.
And describe w/ particularity the place to be searched or items/persons to be seized.

Question 9

scope of warrant

Answer 9

The warrant is limited to what is reasonably necessary to discover items described & it must be executed w/o unreasonable delay. Generally the officers must knock and announce their authority and purpose and wait a reasonable amount of time before using force to enter, unless they have RS that this would be dangerous, futile, or would lead to destruction of evidence.

Question 10

warrantless S&S

Answer 10

are per se unreasonable unless an exception applies. (SPACESS)

Question 11

SILA

Answer 11

Once a suspect has first been lawfully arrested, the officer may conduct a search of the suspect & areas w/in her immediate control where she might obtain a weapon or destroy evidence (wingspan). The search must be contemporaneous in time and place w/ the arrest. Rationale? → Officer safety & preservation of evidence.

Question 12

protective sweep

Answer 12

Upon lawful arrest of a suspect in the home, officers may look in immediately adjoining spaces of the place of arrest where an attack may occur. Beyond that, there must be articulable and RS that the area to be swept harbors a dangerous individual. The sweep may extend only to a cursory visual inspection of those spaces where a person may be found. Maryland v. Buie.

Question 13

auto SILA

Answer 13

police may search the interior of an automobile (including closed containers), but not the trunk, ILA of a recent occupant if: the arrestee is unsecured and w/in reaching distance of the passenger compartment at the time of the search; OR if there is reasonable belief the vehicle contains evidence of the offense of the arrest. AZ v. Gant.

Question 14

inventory search

Answer 14

police may conduct a search of the arrestee’s person’s property as a routine booking procedure, including their impounded car.

Question 15

DNA swabbing

Answer 15

for serious crimes is a legitimate booking procedure. May be used to match the suspect to past & future crimes.

Question 16

plain view

Answer 16

To justify a warrantless seizure of an item found in plain view, the officer must legitimately be on the premises w/ a lawful right to access the object, and the incriminating character of the item must be immediately apparent for the officer to reasonably believe the item is evidence or contraband.

Question 17

auto exception

Answer 17

If police have PC that an automobile contains evidence of a crime or contraband, they may search anywhere in the vehicle that might reasonably contain the item. (including the trunk, closed containers, and belongings)

Question 18

consent

Answer 18

Police may conduct a warrantless search if they have voluntary consent by one w/ an apparent equal right to use or occuupy the property. Voluntariness is determined by the TOTC. Search is limited to the scope of consent. Police may not act on consent of one occupant if a co-occupant, whom the search is directed against, is present & objects to the search. However, if the objecting occupant is pr0perly removed for a reason unrelated to the refusal, police may act under the consenting occupant’s authority to search.

Question 19

hot pursuit

Answer 19

officers in pursuit of a fleeing felon may make a warrantless S&S related to the pursuit, including pursuing a suspect into a private dwelling.

Question 20

exigency

Answer 20

officers may make a warrantless search when the officer has reason to believe that evidence will be destroyed before they can produce a warrant. However, the officer can not create the exigency through an actual or threatened 4A violation.

Question 21

evanescent evidence

Answer 21

evidence that would likely disappear if the police waited to obtain a warrant may be seized w/o a warrant. Bodily intrusions must be reasonable based on the TOTC (balance individual privacy interest vs. gov interest)

Question 22

community caretaking

Answer 22

Officers may make a warrantless entry when faced w/ an emergencty situation that threatens health/safety of the public.

Question 23

stop and frisk

Answer 23

on officer may stop/detain a person when she has RS, based on articulable facts, of past, present, or future criminal activity. RS is based on the TOTC. The stop must be no longer & no more intrusive than reasonably necessary to resolve the officer’s suspicions. May require oral ID unless that would violate 5A right against self-incrimination. A frisk is a pat down of the suspect’s outer clothing to check for weapons. To conduct a frisk, the officer must have RS that the person is armed and presently dangerous.

Question 24

traffic stops

Answer 24

based on RS are constitutional. Officer may order all passengers to step out of the vehicle. If officer has RS passengers are armed and dangerous, she may frisk as well as conduct a limited search of the passenger compartment in areas where a weapon may be hidden.

Question 25

detention to obtain a warrant

Answer 25

If police have PC that a suspect has hidden contraband/evidence in his house, they may, for a reasonable time, prohibit him from going into the house unaccompanied to prevent him from destroying the evidence while they obtain a warrant. (2 hours is reasonable)

Question 26

administrative/special needs

Answer 26

no PC, RS, or warrant req’d. The court weighs the individual’s privacy interest against the gov’s interest and means taken to achieve that interest to determine constitutionality.

Question 27

Roadblocks / Checkpoints

Answer 27

Warrantless sobriety checkpoints are constitutional if: it’s justified by highway safety, it advances the public interest, the intrusion is minimal & the seizure is carried out pursuant to explicit, neutral limitations (routine).

Question 28

borders

Answer 28

there are no 4A rights at the border (customs). Permanent Alient Checkpoints are constitutional b/c the intrusion is minimal and the public interest is great. However, roving-patrol stops require RS.

Question 29

administrative inspections

Answer 29

generally require a warrant for search of private residences and commercial buildings, but the PC req’d is lower and issuance of the warrant requires general and neutral enforcement. However, certain administrative searches are permitted w/o a warrant:
Public Schools
Searches to seize spoiled/contaminated food
Heavily Regulated Industries – junkyards, arms dealers, strip mining, liquor stores, etc.
Military Bases
Parolees
Airports

Question 30

Public Schools

Answer 30

school officials acting w/o the police may search students person and property w/o warrant when they have reasonable grounds that the search will result in incriminating evidence. Schools can do random drug testing for students involved in extracurricular activities.

Question 31

Wiretapping

Answer 31

requires a warrant, unless one party to the conversation has consented to wearing a wire or the conversation takes place in public.

Question 32

Exclusionary Rule

Answer 32

A judge-made rule that prohibits the prosecution from introducing evidence obtained in violation of a D’s 4th, 5th, or 6th Amendment rights. Under the fruit of the poisonous tree doctrine, evidence wrongfully obtained is inadmissible if found due to the original wrongfully obtained evidence, unless an exception applies. weighs the interest in avoiding police misconduct vs. the public interest in getting all the facts to the jury.

Question 33

ER Exceptions

Answer 33

Attenuation, Intervening Act, IDD, ISD, Miranda, K&A, Impeachment, GFD

Question 34

Attenuation/ Purged Taint

Answer 34

If enough additional factors intervene between the original constitutional violation & the final discovery of evidence, the evidence may still be admissible.

Question 35

Intervening Act

Answer 35

An intervening act of D’s free will can break the chain and purge the taint of the original constitutional violation. (However, a voluntary confession given while in custody immediately following an unlawful arrest will not be admissible even if given Miranda warnings)

Question 36

Independent Source Rule

Answer 36

If evidence was obtained by a source independent of the original constitutional violations, the evidence will not be excluded.

Question 37

Inevitable Discovery Doctrine

Answer 37

if other investigative techniques would have inevitably discovered the evidence even w/o the original unconstitutionally obtained information, the evidence will not be excluded.

Question 38

K&A violation

Answer 38

ER is not a remedy for this violation

Question 39

Miranda violation

Answer 39

while miranda violations will exclude D’s statements, physical fruits of the violation will not be excluded.

Question 40

impeachment

Answer 40

illegally obtained evidence may still be used to impeach D but not any other witnesses. Voluntary confessions admissible to impeach but coerced are not. Evidence obtained by unlawful search that is inadmissible for prosecution is admissible to impeach D on cross exam.

Question 41

good faith defense

Answer 41

ER does not apply if the police reasonably relied in good faith on a judicial opinion, statute, ordinance, or defective search warrant. The GFD will not apply if the warrant (1) was obtained pursuant to an illegal search, (2) the warrant is facially defective (fails particularity), (3) the affidavit lacks PC, (4) police lied or misled the magistrate, OR (5) the magistrate was biased (wholly abandons her judicial role).

Question 42

ER standing and application

Answer 42

Standing – D may only assert the ER to bar evidence obtained in violation of her own constitutional rights. Inapplicable to – civil proceedings, grand juries, deportation hearings, parole/probation proceedings, or violations of state law.