4th Amendment

Question 1

Fourth Amendment

Answer 1

protects citizens from unreasonable searches and seizures

Question 2

Arrests and Detentions

Answer 2

1. arrest must be based on probable cause
2. Arrest warrants are not required before arresting someone in public place
3. Non Emergency Arrest of a person in his home DOES REQUIRE an arrest warrant
4. Station House Detention: police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation. If you go voluntarily, that’s your fault

Question 3

Terry Stops (investigatory Detentions)

Answer 3

1. Cops can briefly detain person if they have reasonable suspicion supported by ARTICULABLE FACTS of criminal activity
2. Whether the police have reasonable suspicion depends on the TOTALITY OF CIRCUMSTANCES
3. Car Stops: cops can stop a car if they have reasonable suspicion that the law has been violated
   CHECKPOINT ROADBLOCKS: Dui/Bordercrossing check points are fine long as they are neutrally applied, cant randomly pick, needs some type of system
4. Traffic Stops and Police Dogs: during routine traffic stops, a Sniff is not a search so long as the cops do not extend the stop beyond the time needed to issue a ticket or doncut normal inquiries
   - A dog alert during traffic stop can form probable cause for a search
   - cops cant take car to a house and have him sniff

Question 4

5 steps when answering Essay question for Crim Pro

Answer 4

1. Governmental Conduct? 2. Was there a reasonable Expectation of Privacy? 3. Did the police have a valid search Warrant? 4. If the warrant isnt valid, does the cops good faith defense save the defective search warrant? 5. If a warrant is invalid and cant be saved by the good faith defense or ifthe police never had any warrant at all, then you move to last step: Exceptions of the warrant requirement

Question 5

Step One: Government Conduct?

Answer 5

Govt Conduct:

1. actual/publicly paid police, on or off duty
2. any private individual acting at the direction of the public police (roommate searching your stuff at behest of pigs)
3. private paid police actions dont constitute governmental conduct unless they are deputized with power to arrest you.
   Examples of privately paid police: store security guards, subdivision police, campus police

Question 6

Step two: Reasonable Expection of Privacy?

Answer 6

Need reasonable expectation of Privacy to assert standing to challenge a search.

A. Automatic Standing: if you own premisis being searched, you live on the premisis (grandchild living at grandparents), and overnight guests have standing to object to legality of search at place theyre staying.

B. Owning the Property Seized: If you own the property seized, you have standing ONLY IF you have a reasonable expectation of privacy in the item/area searched

C. NO STANDING CATEGORIES: No standing to anything you put out into the public including: sound of your voie, your handwriting, paint on outside of your car, account records held by a bank, monitoring the location of your car on a public street or in your drive way, anything that can be seen across open fields, space over your house, odors from house, garbage (not garbage bags still on your property)

-installation of GPS device on car is a search/trespass, but tailing a car is fine since its in public

Question 7

Step 3: Did the police have a valid search warrant?

Answer 7

Warrants require probable cause and particularity

a. STandard for probable cause: fair probability that contraband/evidence of a crime will be found in area searched
b. Particularity: warrant must state w/ particularity the place to be searched and the things to be seized

C. Warrants and use of informants: when warrant based on informant info, sufficiency is determined by totality of circumstances. Informants credibility and basis of knowledge are relevant factors in making this determination

D. EXIGENT CIRCUMSTANCES: “No Knock” entry permitted in execution of search warrant if knocking/announcing would be “dangerous,” “futile,” or inhibit the investigation. Fear is that there could be destruction of evidence

Question 8

Step 4: If warrant is invalid, is there good faith defense to save defective search warrant?

Answer 8

A. Good faith reliance by cop on search warrant will be considered valid.
When good faith reliance wont save warrant: 1. info forwarrant is so lacking in probable cause that no reasonable police officer would have relied on it (no specifics) 2. info for warrant is so lacking in particularity that no reasonable cop would have relied on it 3. cop/prosecutor lied/misled the magistrate when seeking the warrant 4. if magistrate is biased and therefore has abandoned his neutrality

Question 9

Step 5: If warrant is invalid/cant be saved by the good faith defense or if the police never had any warrant at all, then you move to last step: EXCEPTIONS TO THE WARRANT REQUIREMENT

Answer 9

A. search incident to arrest

  - 1. arrest must be lawful, if not, search is unlawful
   2. arrest/search must be contemporaneous in time and place
   3. Only person and their wingspan can be searched
   * *4. Search incident to arrest of cars: c0-s can search interior of auto incident to arrest only if: the arrestee is unsecured/uncuffed and still may gain access to the interior of the vehicle OR cops reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

Question 10

Community Care Taker Exception

Answer 10

Warrantless search is okay if a cop faces an emergency that threatens the Health or Safety of an individual or the public (pulling newspaper covering gun in room)

Question 11

Cell Phone Search

Answer 11

without a warrant, cops may not search digital information on a cell phone seized from an arrested individual

Question 12

Automobile Exception

Answer 12

1. In order for the police to search anything or anybody and fall under the car exception they must have: PROBABLE CAUSE
2. If before searching anything/anybody the police have probable cause then they can search entire car. Includes the entire interior compartment, and the trunk.
   Packages: cops can open without warrant any package, luggage or other container which could reasonable contain the item/evidence cops have probable cause to look for whether that package, luggage or other container is owned by the passenger or the driver

Question 13

Plain View Doctrine

Answer 13

1. For evidence in plain view to stick, cop must be legally there in area where he sees contraband.
2. The contraband must be immediately apparent that the item is contraband or a fruit of a crime

Question 14

Consent to Search

Answer 14

consent must be voluntary. If you consent based on fake warrant, no good, you relied on it and consent wasnt voluntary

Question 15

Third Party Consent*

Answer 15

With two people living in a residence, either party can grant consent to cops. If one agrees, but the other doesnt, cops cant search/come in.

-If the person who refuses the search is taken away for some reason, the person left can consent to the search

Question 16

Terry Frisk

Answer 16

1. a pat down of outer clothing and body to check for weapons. Cop has to reasonably believe by plain feel it is contraband.has to be immateialy apparent
2. If probable cause arises during investigatory stop, it can escalate to arest and cop can conduct full search
3. Auto-Stops: if cop stops car and reasonably believes driver/passenger may be armed, cop can 1. conduct a frisk of suspected person and 2. may search the car so long as it is limited to areas in which weapon may be placed

Question 17

Evanescent Evidence

Answer 17

evidence that might disappear quickly if police take time to get a warrant. Cops can scrape under suspect’s fingernails without getting warrant because getting warrant would take to much time and D could wash hands destroying evidence

Note: cops need to get warrant before taking a blood sample for a dui arrest if it is practical to do so

Question 18

Hot Persuit of fleeing felon

Answer 18

if police are not within 15 minutes behind the feeling felon, not valid hot persuit, cant barge into his home etc. If cops are actually in hot persuit, can enter anyones home without warrant, and any evidence they see in plain view will be admissable

Question 19

Inventory Searches

Answer 19

Before incarceration of an arrestee, cops may search:

1. the arrestees personal belongings and/or 2. arrestees entire vehicle

Question 20

Public School Searches**

Answer 20

A. public school children engaged in Extra-curricular activities can be randomly drug tested (football, chess club, school dances)

B. warrantless searches of public school kid’s effects such as purses and or back packs is permissible to investigate violations of school rules

C. school search is reasonable if:

 1. it offers moderae chance of finding evidence of wrong doing and
 2. the measures adopted to carry out the search are reasonably related to the objectives of the search and
 3. the search isnt excessively intrusive

Question 21

Wiretapping & Eavesdropping

Answer 21

All wiretapping/eavesdropping requires a warrant

Exeptions:

Unreliable ear: speakign to third party is risk we all take, they could be wired by cops, no 4a protection, risk we take

Uninviated ear: speaking in public, no 4a protection if person takes 0 steps to keep it private

Question 22

Search Warrants-searching third parties

Answer 22

To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant must describe with reasonable precision the place to be searched and the items to be seized. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. SCOTUS held that “each patron of the tavern had an individual right to be free of unreasonable searches, and presence at a location subject to search does not negate the requirement of probable cause to search the person present