4th Amendment Flashcards
Definition of Seizure
A person is seized when, as the result of government action: a reasonable person in the situation would feel that they are not free to leave or to terminate the encounter with the officer.
Terry Stop
A Terry Stop is a “brief investigatory seizure.” There must be “Reasonable suspicion that crime is afoot.”
Permissible scope of a Terry stop
Time required to confirm or deny the suspicions when the officer is acting in due diligence.
Arrest
- Probable cause is always required.
- Police may arrest a suspect in public without a warrant, so long as he has probable cause.
- An arrest warrant is required: before the police can arrest an individual in the home. (UNLESS Exigent circumstances).
Exigent circumstances justifying a warrantless entry into the suspect’s home to execute an arrest
(1) an arrest attempt outside the home is thwarted because the suspect retreats into the home;
(2) there is insufficient time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence; or
(3) the arresting officer is in “hot pursuit” and has probable cause to effect a valid arrest of the suspect.
- The officer must not have deliberately created the exigency just to avoid obtaining a warrant.
Seizure of Property
- A warrant based on probable cause is required to justify the seizure of property.
- No warrant is required if the property is: in plain view.
Plain view to seize the property
(1) the police are in a lawful vantage point to observe the item; and
(2) the incriminating nature of the item is: immediately apparent. (= Doesn’t require additional research).
Search
A search is a government intrusion into: the reasonable expectation of privacy.
A reasonable expectation of privacy requires:
1) A subjective expectation or privacy
2) An objective expectation of privacy
A valid warrant to search or seize must be:
(1) issued by a neutral and detached magistrate,
(2) based on probable cause, and
(3) describe with particularity the thing to be seized or place to be searched.
If there was a warrantless search or seizure, the government bears the burden to prove:
that the search or seizure fell within an established exception to the warrant requirement.
“Knock and Announce”
Police must normally “knock and announce” his identity before entering a home to execute a warrant.
Exception:
The police had a reasonable belief that knocking will endanger themselves, or lead to the destruction evidence or escape of the suspect.
Note:** Violation of the “knock and announce” rule violates the Fourth Amendment, but does not trigger the exclusionary rule.
A search warrant for a premises
A search warrant for a premises carries with it the right to detain persons there during the search, but not the right to search those persons.
Warrantless Searches
- Search incident to a lawful arrest
- Automobile exceptions
- Consent
- Hot pursuit
- Exigent circumstances
- The Terry Search
Search incident to a lawful arrest
Can search the D’s person, as well as the area within his immediate control.
When an arrest is affected while the D is in a car or has immediately exited a car: the scope of the search is,
(1) Like any other arrest, police may automatically search the person.
(2) If the arrestee has genuine access to the interior of the car after being placed under arrest, the scope of the SITLA extends to the interior of the car and the containers within the interior.
(3) If as the result of being placed under arrest the arrestee does not have genuine access to the interior of the car, search of the interior is permitted only when the police have a reasonable belief that evidence related to the crime of arrest is in the car.
Automobile Exceptions
Police may search an automobile or any other self-propelled conveyance (motor home, boat, or airplane) without a warrant, so long as they have probable cause.
- Note: The permissible scope of the search is dictated by the probable cause, which prohibits police from automatically searching the entire vehicle.
Consent
Consent is an exception to both the warrant and probable cause requirements.
Consent must be: Knowing and voluntary. Based on the totality of circumstances test.
the scope of consent is implied by the request and/or the item the officer indicates he is looking for.
An individual has an absolute right to refuse to grant consent, to withdraw consent once granted, or to limit the scope of the consent.
Hot pursuit
Police may enter and search a private dwelling while in reasonable pursuit of the fleeing suspect. (Actual hot pursuit)
Exigent circumstances
Police may search without a warrant when the situation indicates that waiting to obtain a warrant will result in:
(1) put the officers or others in immediate danger
(2) evidence will be immediately destroyed
(3) allow for the escape of the suspect
b. Exigency justifies a warrantless search and seizu
The Terry Search (Frisk)
A Terry Frisk is a cursory search for weapons or some other instrumentality that creates an imminent danger to the officer or others in close proximity.
Scope: the scope of a Terry frisk is strictly limited to a cursory inspection of the suspect’s outer clothing to confirm or deny that the suspect is armed
