4th Amendment Flashcards
Under the 4th Amendment, a person is granted protection from
unreasonable government searches. A search occurs when government conduct violates a person’s reasonable expectation of privacy.
Places where there is a reasonable expectation of privacy:
Homes
Hotel rooms
Offices
Backyard of the home (curtilage)
Luggage
Places where there is NOT a reasonable expectation of privacy:
Public streets
Open fields (even if the open field is private property) not within curtilage
Garbage left out in the street
Abandoned property
Anything visible from public airspace
Anything that can be seen inside one’s home from public space
bank records in possession of the bank (those are the banks, not yours)
Black’s Law definition of curtilage
The enclosed space of ground and buildings immediately surrounding a dwelling-house
As to the open fields definition as no expectation of privacy, does this mean an officer without a warrant could use wire cutters to break into a field and conduct a search for evidence?
YES, they could do this WITHOUT A WARRANT, as long as not within curtilage of farmer’s dwelling house.
Absent any of the seven exceptions listed below, a warrantless search performed by the government that violates a reasonable expectation of privacy is unlawful. Evidence obtained without a warrant is usually excluded unless an exception applies. Think of the seven exceptions to the warrant requirement as seven E.S.C.A.P.E.S. from the warrant requirement:
Exigent circumstances
Search incident to lawful arrest (SILA)
Consent
Automobiles
Plain View
Evidence obtained from administrative searches
Stop and frisk
A search warrant must:
Be issued by a neutral magistrate;
Be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime;
AND
Describe the place and property to be searched with particularity.
If a warrant fails to meet these three requirements, the warrant is invalid, and the recovered items will be excluded from the prosecutor’s case-in-chief.
Search warrant exception: exigent circumstances
Law enforcement officers may conduct a search without a warrant if:
The officers are in “hot pursuit” or immediate danger;
OR
The evidence would spoil or disappear in the time it would take to obtain a warrant.
However, a warrant is necessary for a search if the officers create the exigent circumstances.
Search warrant exception: search incident to a lawful arrest (SILA)
Law enforcement officers may conduct a search without a warrant if the search occurs at the time that a lawful arrest is made. The scope of the search is limited to objects within the reach of the arrestee (e.g., if the arrestee is restrained, their reach is very limited – this would limit the permissible scope of the search).
Note, however, Immanuel 6th ed. question 58, D arrested due to warrant for unpaid parking tickets, after handcuffing her, they search her and the car and discover heroin in paper bag in the back seat.
My guy Immanual says this was a legit search incident to a lawful arrest………he makes the note that they could not do a full-blown search of the passenger compartment, so I guess he’s saying the back seat is within her reach, even though she was in cuffs…
Search warrant exception: consent
Law enforcement officers may conduct a search without a warrant if a person voluntarily consents to a search. Officers do NOT have to inform the subject that she has the right to refuse consent to the search.
A third party with apparent authority can consent to search. However, officers cannot search over a present occupant’s objection (e.g., if one occupant consents and the other occupant refuses, officers cannot search the property).
Search warrant exception: automobiles
Law enforcement officers may conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime.
They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause (e.g., cannot search for a shotgun in the glove box where it cannot reasonably fit).
even when a driver is subjected to a full custody arrest, the officer may not search the passenger compartment incident to that arrest unless either
(1) the arrestee has access to the passenger compartment at the moment of the search; or (2) the officer reasonably believes that the passenger compartment may contain evidence of the particular offense for which the arrest is being made.
So if arrested for speeding and now in the back seat of the patrol car, cannot search any of the car because at that moment, arrestee has no access to the car and no reason to believe searching the car would yield evidence of speeding
Search warrant exception: plain view
Law enforcement officers may seize evidence without a warrant if:
The officers are legally on the premises;
The evidence is observed (with any of the five senses) in plain view;
AND
There is probable cause to believe the items are evidence of a crime or contraband.
Search warrant exception: evidence obtained from administrative searches
Law enforcement officers do NOT need search warrants to conduct administrative searches if the search is both:
Reasonable;
AND
Conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting the discretion of the officer.
E.g., airplane boarding areas, international borders, roadblocks for drunk drivers or seeking information, etc.
E.g., Businesses (such as weapons dealers and junkyard owners where high theft areas) subject to extensive regulation may be subjected to warrantless, unannounced searches, at least where frequent unannounced inspections are the only effective way to enforce the regulatory requirements. ‘Ordinary’’ businesses — ones not subject to unusually heavy governmental regulations — are not subject to warrantless inspections, any more than homes are.
Search warrant exception: Stop and Frisk (Terry Stop)
Law enforcement officers can stop an individual when the officer has a reasonable suspicion, based on articulable facts (i.e., more than a “hunch” – less than probable cause), to believe that the subject is or is about to be engaged in criminal activity.
During a Terry stop, an officer can frisk a subject for weapons without a warrant; however, the officer cannot initiate a search for evidence. If the frisk for weapons reveals objects whose shape makes their identity obvious (e.g., object is obviously contraband), the officer may seize those objects.
In order to arrest an individual, law enforcement officers must have
probable cause to believe that the individual has committed a crime. An officer has probable cause if:
The officer witnesses the commission of the crime;
OR
A person tells the officer that a crime has been committed.
An individual may be arrested with or without
an arrest warrant; however, an arrest warrant authorizes law enforcement officers to enter a home to arrest the individual.
An arrest warrant is issued by a neutral magistrate based on a finding of probable cause to believe that the named individual has committed a crime. Without a warrant, officers can arrest an individual inside the home only if there is:
Consent to enter;
OR
Exigent circumstances.
NOTE. An individual can be stopped if there is a reasonable suspicion of criminal activity (Terry stop). However, if probable cause develops during the Terry stop, the officer can then make a lawful arrest of the individual.
