4th Amendment

Question 1

4th amendment has 2 major parts

Answer 1

1. protects people from unreasonable searches and seizures in their home by the government; and
2. states that warrants must be supported by probable cause

Question 2

4 key questions when approaching a 4th amendment question

Answer 2

1. Was there a search or seizure?
   –Was the search or seizure conducted by a government actor?
2. Was there probable cause?
3. Was there a valid warrant? (Was the warrant defective or did the police act in bad faith?)
4. Was there an exception to the warrant requirement?

Question 3

reasonable suspicion

Answer 3

a belief based upon articulable information (more than a mere hunch) used by a reasonable person or cop that the suspect has or is about to engage in illegal or criminal activity

Question 4

probable cause

Answer 4

trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime

Question 5

When will actions by a private individual trigger the 4th Amendment?

Answer 5

If the individual acted at the direction of a government agent or pursuant to an official policy

Question 6

identifying seizure under 4th amendment

Answer 6

for property: indicated by government action that results in a “meaningful interference” with a possessory interest.
-When police take control of property, it has been seized.

for individual: if a reasonable person in D’s position would have believed he was not free to leave, it is a seizure
-This is normally indicated by either police applying physical force to the individual or a police show of authority followed by submission.

Question 7

What is required for a valid arrest?

Answer 7

1. Probable cause; and
2. Warrant if:
   -Suspect is in their own home or another’s home absent consent or emergency circumstances

*a warrant is not required for:
-arrest in public for a felony
-arrest for misdemeanor committed in the officer’s presence

Question 8

When is an arrest warrant NOT required?

Answer 8

If:

-Arrest is in a public place;

-Arrest is for a misdemeanor punishable by a fine and police witnessed the misdemeanor;

-Exigent circumstances exist; or

-Police had consent to enter D’s home or third party’s home

Question 9

Does an illegal arrest prevent the government from prosecuting D?

Answer 9

No, as long as police have probable cause, they may prosecute and detain D even if the arrest was illegal.
*however evidence seized during an illegal arrest may be suppressed at trial

Question 10

When can the police stop an automobile?

Answer 10

Must have reasonable suspicion of illegal activity, unless the stop is at a checkpoint.

Question 11

can police order the driver and passengers to exit the vehicle during a traffic stop?

Answer 11

Yes because officers have the right to ensure their own safety during routine traffic stops

Question 12

identifying a search under 4th amendment

Answer 12

a search occurs occurs when police seek to find evidence and either:
1. physically trespass on an individual’s “person, papers, home, or effects (chattel property),” even if that property is exposed to the public; or
2. police intrude upon the individual’s reasonable expectation of privacy (even if it does not involve a physical trespass to the “person, home, papers, or effects”).

Question 13

“open field” trespass

Answer 13

A trespass on an “open field” (private property beyond the curtilage of the home) does not qualify as an investigatory trespass-type search because the open field is not considered part of the home.

*Curtilage is the area intimately surrounding the home.

Question 14

Reasonable Expectation of Privacy

Answer 14

REP requires that:

1. the D manifests a subjective expectation of privacy by making an effort to the shield thing or activity the police are looking for from the public; and
2. the expectation is one society recognizes as reasonable

Question 15

two-prong test to determine if there was a search

Answer 15

1. was there an investigatory trespass on the subject’s person, papers, home, or effects? if yes = search.
   If no,
2. did the government action intrude on a reasonable expectation of privacy? If yes= search.

Question 16

examples of when there is no REP

Answer 16

-Objects knowingly exposed to the public;
-Smells emanating from personal belongings;
-Car VIN #’s;
-Handwriting samples;
-Voice exemplars;
-DNA samples;
-Bank records;
-Phone call records;
-Conversations with government informants;
-Open fields;
-Airspace above property higher than 400 feet
-Naked-eye observations of private property; and
-Discarded property

Question 17

Do you have REP in your cell site location?

Answer 17

yes, even though cell site location information is shared with the cell phone service provider, it nonetheless falls within a REP because there is no genuine voluntary choice to share such information. This means police access to cell site location information is a search.

Question 18

Does an overnight guest in someone’s home have a reasonable expectation of privacy?

Answer 18

Yes, as long as the premises aren’t being used for an illegal purpose

Question 19

Does an overnight guest in a hotel have a reasonable expectation of privacy?

Answer 19

Yes. A hotel clerk cannot consent to the search.

Question 20

police use of animals

Answer 20

use of a dog to detect odor of narcotics = not a search.

if police bring the dog onto the curtilage of the home and allow it to explore for a scent, this is physical trespass = search.

Question 21

police use of commonly available equipment to enhance the natural senses

Answer 21

will not qualify as a search, unless:
-police enter upon the curtilage of the home to utilize the device; or
-police use a device (like a thermal imager) that enables them to see “through the walls” of a home.

Question 22

Does placing a tracker on D’s vehicle or other private property constitute a search?

Answer 22

Yes, if police physically intruded on D’s property to install the tracker.

Question 23

requirements for a valid warrant

Answer 23

Warrant must be:

1. Based on probable cause;
   –Supported by oath or affidavit
2. Describe with particularity the thing/person to be seized and place to be searched; and
3. Be issued by a neutral and detached magistrate

Question 24

scope of warrant is limited to:

Answer 24

only the premises, person, or items described in the warrant

Question 25

are warrants needed for each person to be searched?

Answer 25

Yes, there must be an independent basis to search each person; just because they are in the same room doesn’t mean the search is valid (absent exigent circumstances).

note: police can detain subjects not included in the warrant, but they cannot search them.

Question 26

analyzing 4th amendment compliance when police engage in search or seizure pursuant to a warrant

Answer 26

• a valid search or seizure (arrest) warrant creates a presumption of 4th amendment compliance

-police must act within the scope of the warrant:
–A search warrant allows police to search the specified place for the specified contraband.
–An arrest warrant allows police to arrest the suspect and carries with it implicit authority to search the suspect’s (but NOT a third party’s) home to execute the arrest if:
(1) police have reason to believe the suspect is home, and
(2) the suspect refuses to respond to police requests to open the door.

Question 27

to invalidate a warrant, the D must prove

Answer 27

1. the warrant was not based on valid PC; or
2. the magistrate was not neutral and detached; or
3. the warrant failed to describe with particularity the thing to be seized or place to be searched; or
4. the affidavit supporting the warrant was so lacking in PC that no rookie officer would have trusted it.

Question 28

8 exceptions to the warrant requirement

Answer 28

1. exigent circumstances
2. searched incident to lawful arrest
3. consent
4. automobile search
5. plain view search
6. inventory search
7. special needs
8. terry stop and frisk

Question 29

exigent circumstances

Answer 29

if police have PC, they may search without a warrant when they believe waiting for a warrant would result in:
-imminent flight of the suspect
-imminent destruction of evidence; or
-imminent danger to police or others in the area.

Question 30

Hot pursuit (exigent cicumstances)

Answer 30

while actively pursuing a felon, exigency allows them to enter any home the suspect retreats into without a warrant, even the home of a 3rd party
-they can also search anything related to the pursuit or search for their own protection.

While in that pursuit, they may seize not only evidence of the crime for which they are chasing the suspect but also any additional contraband that they find.

Question 31

search incident to lawful arrest

Answer 31

police may search a lawfully arrested person and his immediate surrounding area without a warrant

requirements:
1. arrest must be lawful
2. search must be contemporaneous with the arrest
3. search must be limited to area within suspect’s reach or movement

protective sweep: police may sweep an area for officer safety or with reasonable belief that accomplices may be present.

Question 32

consent exception

Answer 32

voluntary consent allows police to search within the scope of the consent even without a warrant or PC

EXAM TIP: Denying an officer consent may make the officer suspicious, but it does NOT provides probable cause or even reasonable suspicion to seize or search the individual.

Question 33

third party consent

Answer 33

-An officer may reasonably rely on third-party consent so long as the third party had actual or reasonably apparent authority over the area.

-This applies to common areas, but not to where police know or reasonably should know that another person has exclusive control. Accordingly:
–it is unreasonable to rely on a landlord’s consent to search a tenant’s apartment;
–it is unreasonable to rely on a motel owner’s consent to search a guest’s room; and
–it is unreasonable to rely on an employer’s consent to search an employee’s private storage area.

Question 34

automobile search

Answer 34

if PC exists, police may search an entire vehicle and containers or compartments inside that may contain evidence they are searching for

requirements:
1. police must have probable cause to search the vehicle; and
2. probable cause must arise before the search begins.

The automobile exception to the warrant requirement allows police to search a vehicle when police have probable cause to believe that automobile contains contraband or evidence of a crime. However, the police may only search those areas of the vehicle that may contain the object of the search. Police may also open any closed containers in the vehicle where the item may be found.

Question 35

plain view exception

Answer 35

allows the warrantless seizure of property when:
1. police are legitimately on the premises from which they viewed the evidence to be seized
2. the incriminating nature of the item is immediately apparent
3. the item is in plain view

plain smell: included- if smell gives rise to PC from a place of legitimate police presence, they can search that item.

Question 36

inventory exception

Answer 36

an inventory is an administrative inspection of an impounded vehicle and/or an arrestee’s property once it is taken into police custody. no requirement for a warrant or PC

Question 37

special needs doctrine

Answer 37

police can use checkpoints to conduct brief seizures or limited searches when the primary purpose is to protect the public from a serious immediate danger.

common ones include:
-sobriety checkpoints;
-the search for escaped inmates;
-counter-terrorism checkpoints; and
-drug testing of airline pilots and railroad engineers.

*subjects must be picked in a neutral manner

Question 38

are border searches allowed?

Answer 38

Yes, officials may search anyone at or near the border (including international airports and ports) in a routine manner without a warrant, or probable cause, or reasonable suspicion

Question 39

terry stop

Answer 39

a brief investigatory seizure by the police when there is reasonable suspicion of criminal activity.

*only requires reasonable suspicion. however, if the officer’s suspicion is confirmed, it may turn into PC to arrest.

Question 40

permissible duration of a terry stop

Answer 40

time necessary to confirm or deny the police officer’s suspicion

Question 41

terry search (frisk)

Answer 41

police may conduct this limited protective search if they have reasonable suspicion that the suspect is armed and dangerous

Question 42

scope of a terry frisk

Answer 42

Police are only allowed to do a quick pat-down of the suspect’s outer clothing for weapons. Cannot manipulate items.

Question 43

plain feel exception to terry frisk

Answer 43

If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon

Question 44

administrative searches

Answer 44

Search carried out by regulatory bodies to enforce compliance with administrative regulations and/or health and safety codes

*based on reasonable suspicion

*Normally, agency inspectors will also be required to obtain an administrative warrant/authorization to search private homes or businesses

Question 45

airport screenings

Answer 45

screenings are permitted based on no individualized suspicion in order to protect airline passengers from weapons and explosives

Question 46

4th amendment remedies

Answer 46

-Standing
-the Exclusionary rule

Question 47

standing

Answer 47

the D must show that an unreasonable search or seizure intruded on their personal constitutional rights
*cannot assert someone else’s constitutional rights

Question 48

the exclusionary rule

Answer 48

prohibits the introduction of evidence in a criminal trial obtained in violation of D’s constitutional rights

Question 49

fruit of the poisonous tree doctrine

Answer 49

any evidence derived or obtained from illegal government conduct is subject to exclusionary rule and thus excludable against D.

Question 50

exceptions to exclusionary rule

Answer 50

evidence may be admissible if it falls under one:

1. independent source: evidence is obtained from a lawful source independent of the original illegality
2. inevitable discovery: government would have discovered the illegally derived evidence even without illegal conduct
3. attenuation: where evidence challenged is too remote and distant from the initial illegality
4. impeachment: illegally obtained evidence may be used to impeach D at trial
5. good-faith: when officers were acting in good faith on a warrant that was later declared invalid.