4th Amendment (1211) Flashcards
1
Q
what does the 4th amendment protect?
A
- govt. intrusion on the privacy and property rights of the people
- only applies to govt action
2
Q
the 4th amendment states . . .
A
the right of people to be secure in their persons, houses, papers, and effects (car/bag), against unreasonable searches and seizures
3
Q
what is needed for a warrant?
A
- probable cause
- oath or affirmation
- description of place or persons being searched/seized
4
Q
how many distinct parts does the 4th amendment have?
what are they?
A
- two
- part one: right to search (must be reasonable)
- part two: warrants clause (p/c needed)
5
Q
Is evidence obtained in a private search by a private citizen admissible?
does the 4th amendment apply?
A
- Yes
- No, unless the individual was acting under direction of the govt or a govt agent
- exclusionary rule does not apply
6
Q
what three factors are considered by the court during a private search?
A
- govt knowledge or acquisition of private actors conduct
- will the private party assist LEO’s at time of the search
- did the govt encourage, initiate, or participate in the private action
7
Q
United States v. Jones
A
- officers placed gps tracking device on car for 28 days
- no court order or warrant to act (expired warrant)
- court found that a vehicle is an “effect” which is a constitutionally protected area under the 4th Amendment
- physical intrusion by govt into a constitutionally protected area for gathering info is a “search” under the 4th Amendment
- common law applied because officers trespassed on property (vehicle)
8
Q
what is required by the Jones Analysis?
A
- trespass or physical intrusion by the govt on a constitutionally protected area
- intent to gather info
9
Q
United States v. Katz
A
- police bugged a telephone booth to listen to Katz conversation
- Door was closed, with expectation of no one listening
- common law on trespass did not apply (public property)
- court ruled 4th amendment protects privacy and places
10
Q
Katz Analysis
A
- reasonable expectation of privacy
- two pronged (must have both or no REP)
1. person must have exhibited an actual (subjective) expectation of privacy
2. expectation must be one that society (determined by courts) is prepared to recognize as reasonable
11
Q
exclusionary rule
A
- evidence obtained thru an illegal search (violation)
- inadmissible
12
Q
civil liability
A
legal obligation that requires a party to pay for damages
13
Q
criminal liability
A
person is liable or responsible for a crime when he or she has acted with criminal intent
14
Q
4th amendment ground rules
A
- courts prefer warrants
- homes have highest protection under 4th amendment (protects curtilage)
- no protection for items in public view
- LEO’s can enter public areas w/o a warrant
- p/c alone is never enough to search (need p/c + search warrant)
15
Q
what is a search
A
- govt intrusion/entrance into an area where a person has REP
- physical trespass onto a constitutionally protected area to obtain info
- must be reasonable
16
Q
warrant exceptions
A
- terry frisk
- consent
- carroll search
- protective sweep
- exigent circumstances
- search incident to arrest
- inventory
- admin search
17
Q
common “search” areas
A
- body
- vehicles
- homes
- containers
- curtilage and open fields
- abandoned property
18
Q
body
A
- obtaining evidence directly from a persons body requires a seizure
- after seizure, issue of REP is whether it is internal or external
- internal evidence (blood, urine, saliva) is a search (requires warrant, consent, exigency)
- external evidence (fingerprints, handwriting, or voice samples) requires no warrant, consent, or exigency
- govt can obtain external evidence with a subpoena or court order
19
Q
vehicles
A
- no REP on exterior (VIN, car condition, undercarriage)
- LEO use of vision from a lawful vantage point
- REP for interior (physical intrusion)
- no REP if plain view was exercised
- plain view allows for p/c to get warrant on entry and seize
- passengers have no REP unless they are the driver or owner
- passenger has REP for personal belongings in car
- rental cars: REP for renter or authorized driver
20
Q
admin discipline
A
agency discipline for your actions
21
Q
government liability
A
govt is sued for your actions as govt agent
22
Q
homes
A
- requires both the jones analysis & katz REP analysis
- jones analysis: a govt intrusion or trespass into a persons home w/ intent to obtain info is a search including curtilage
- katz analysis: REP exists even if home is temporarily unoccupied. owners maintain REP in primary residence
- visitors have REP in someone else’s home; REP depends on visitors purpose for being there
- visitors who are frequent visitors w/ access & control to home may have REP
- social & commercial visitors have no REP
- no 4th amendment protection in common areas (stairways & hallways)
23
Q
containers
A
- most personal containers (purses, backpacks, briefcases) are an “effect” under the 4th amendment
- under katz analysis, an individual has REP in their containers, as long as the design is not revealing contents
- under jones analysis, it is a protected “effect”
- govt’s knowledge of the contents does not deprive owner of REP
- need p/c & warrant to obtain warrant or make arrest
24
Q
curtilage & open fields
A
- means area in which the intimate activity associated w/ the sanctity of the home and privacies of life takes place
- open fields include any unoccupied or undeveloped area outside of the curtilage; not protected (no REP)
- LEO’s may enter open field for legitimate LE purposes
- LEO’s can not enter structures in open fields (sheds or barns) w/o a warrant (owner retains REP)
25
Q
dunn factors
A
- proximity of the area claimed to be curtilage to the home
- area is w/in a single enclosure that surrounds the home
- use of the area
- steps taken by resident to protect the area from observation
- courts must consider all four
26
Q
abandoned property
A
- no REP
- REP for garbage located inside house & on curtilage
- no REP for garbage on public street for pick up
27
Q
A
- REP in contents of first class and higher mail thru USPS
- REP on inside of envelope; no REP outside of it
- REP in contents sent thru FedEx, ups, & DHL
28
Q
methods & devices
A
- dog sniff (REP does not extend to airspace around luggage or container) develops p/c
- sensory enhancements
- aircraft overflight
29
Q
sensory enhancements
A
- depends on sophistication of device
- whether the activity the officer views occurs in public or private
- no REP in public airways to what is visible to the naked eye (no warrant needed)
- darkness doesn’t create REP for what would be seen in the daylight
- can not use binoculars to see things that would not be seen to the naked eye
30
Q
seizure
A
- a person is “seized” when, based on totality of the circumstances (including an officer’s application of physical force, however slight, or the person’s submission to the officers show of authority), a reasonable person would not feel free to leave or otherwise terminate the encounter.
- Property is “seized” when there is some meaningful governmental interference with an individuals possessory interest in that property.
31
Q
police-citizen encounters
A
- consensual encounter
- investigative detention or terry stop
- arrest
- only terry stop and arrest are 4th amendment seizures
- 4th applies only when a seizure occurs
32
Q
consensual encounter
A
- LEO may approach an individual and ask incriminating questions
- may request to see ID
- LEO may identify themselves themselves and display credentials
- LEO may ask for consent on a search or frisk
33
Q
factors that make consensual encounters a seizure
A
- time, place, and purpose of encounter
- words of LEO
- language or tone
- number of officers
- if LEO displays a weapon
- if there was physical touching or amount of force
- retention of person’s ID or property
- did LEO tell individual if they had the right to end the encounter
34
Q
terry stops (investigative detentions)
A
- must have reasonable, articulable suspicion that criminal activity is afoot and the person detained is somehow involved
- LEO’s may stop innocent people
35
Q
facts needed for terry stop
A
- crime is about to be committed
- crime is being committed
- crime has been committed
- suspect’s nervous/criminal behavior
- time and location
- suspects flight when seeing LEO’s
- suspect’s presence in a high crime area
- victim/witness
- BOLO
36
Q
totality of circumstances
A
- determines if r/s is present
- articulates facts to whether the person stopped is connected to criminal activity
- includes LEO specialized training and experience along with facts
37
Q
reasonable suspicion
A
- use of different investigative techniques to obtain info
- info obtained from other LEO’s (collective knowledge)
- informants or anonymous sources; reliability of a tip depends on “quantity” & “quality”
38
Q
duration of investigative detention
A
- must be reasonable in length
- last no longer than stops purpose
- reasonable in time, place, and manner
- get p/c or release
39
Q
use of force & factors (investigative detention)
A
- force must be objectively reasonable based on totality of circumstances known to the officer at the time
factors: - number of officers
- nature of crime, is suspect armed
- strength of articulable/objective suspicions
- need for immediate action
40
Q
de facto arrest
A
- investigative detention that extends beyond time frame for LEO to make a decision
- de facto arrest w/o p/c is an illegal arrest
- purpose of stop; nature of crime
- LEO diligently conducted the detention
- amount of force used; need for such force
- extent to which LEO restrained a person freedom of movement
- number of officers
- length & intensity of stop
- time & location
- need for immediate action
41
Q
terry frisk
A
- r/s that a suspect is armed & dangerous
- limited search of person for weapons
- pat down of outer clothing to find weapons
- can not use terry frisk to find evidence
- detention leading to frisk must be lawful
- LEO must suspect person is presently armed & dangerous
- LEO can frisk area under suspect’s immediate control
- can include containers in suspect’s possession (unlocked)
42
Q
factors for terry frisk
A
- criminal history/reputation for gang activity
- bulge in suspects clothes
- furtive or other movement by suspect
- suspects words and actions
- tip from reliable informant
- r/s that suspect committed a crime (involves weapons)
- court examines to determine if there was sufficient factors
43
Q
plain touch doctrine
A
- allows LEO to seize contraband detected during the lawful execution of a terry frisk
1. frisk that leads to discovery of evidence must be lawful
2. incriminating nature of the item must be immediately apparent to the officer w/o manipulation - LEO must have p/c to believe that the object encountered is contraband or criminal evidence based on what he or she initially felt during the frisk
44
Q
detaining vehicles
A
- any traffic violation = r/s
- same r/s standard needed as for terry stop
45
Q
permissible actions (vehicle stops)
A
- ordering driver & passengers out of vehicle or to remain in vehicle
- use of flashlight to illuminate inside of car
- license and registration check
- asking questions
46
Q
vehicle terry frisk
A
- weapons only
- if LEO suspects individual(s) has immediate access to a weapon
- LEO may frisk the person, entire passenger compartment of vehicle, including unlocked containers
- can not frisk trunk
