4th Amendment

Question 1

4th Amendment

Answer 1

protects from unreasonable searches and seizures and requires warrants to be based on probable cause

Question 2

The 4th amendment applies ONLY to:

Answer 2

government conduct

Question 3

What is a seizure?

Answer 3

When, due to government action, a reasonable person in the D’s position would not feel free to leave or terminate the police encounter. The police need to use physical force or a showing of authority followed by submission.

Question 4

What is a terry stop?

Answer 4

brief investigatory seizure. Difference with arrest is the duration and purpose.

Question 5

What is the permissible time for a terry stop?

Answer 5

The permissible duration is time necessary to confirm a reasonable suspicion that crime has occurred, if so, probable cause. If suspicion is denied, seizure must stop.

Question 6

What is a search?

Answer 6

any government investigatory trespass against a 4th amendment interest OR intrusion into a reasonable expectation of privacy.

Question 7

What is an investigatory trespass?

Answer 7

intrusion upon target’s, home (including cartilage), papers, or effects for purpose of finding or gathering evidence of a crime. Need investigatory motive.

Question 8

A reasonable expectation of privacy requires:

Answer 8

1) D manifests subjective expectation of privacy by making effort to shield thing or activity from public
2) Expectation is objectionably reasonable because it is an expectation society is willing to recognize.

Question 9

A search or seizure must be

Answer 9

reasonable

Question 10

A warrant creates presumption of reasonableness, Defendant bears the burden of rebutting this presumption by proving:

Answer 10

1) warrant not based on PC
2) Magistrate not neutral or detached
3) warrant failed to describe with particularity thing to be seized or place to be searched

Question 11

Any search or seizure without a warrant is presumptively

Answer 11

unreasonable and the government bears the burden of proving it falls within established exception

Question 12

What is probable cause?

Answer 12

“fair probability,” facts and circumstances that would make a reasonable person conclude that the individual in question has committed a crime for an arrest or that specific items related to criminal activity can be found at a particular location.

Question 13

What does the totality of the circumstances test for determining the reliability of tips consider?

Answer 13

1) veracity of the information
2) basis of knowledge
3) police investigation that corroborates facts in tip and validates accuracy of informant’s predictions.

Question 14

What is reasonable suspicion?

Answer 14

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

Question 15

reasonable is a level of certainty that will justify only:

Answer 15

a brief investigatory seizure (Terry stop) or cursory protective search (Terry frisk)

Question 16

What is required for an arrest?

Answer 16

1) probable cause is always required
2) Warrant is not required to arrest in public, but is required to arrest individual in own home unless exigent circumstances

Question 17

What is required for a terry stop?

Answer 17

reasonable suspicion that crime is in progress or has just been committed justifies a brief investigatory seizure (terry stop) to confirm or rule out suspicion

Question 18

How can reasonable suspicion be established for a terry stop?

Answer 18

1) police observations; eyewitness reports
2) flight from police in high crime areas
3) informant tip + police investigation that corroborates tip

Question 19

What is required for a seizure of property?

Answer 19

a warrant based on PC presumptively, not always required to justify seizure of property

Question 20

If in plain view:

Answer 20

No warrant required, instead:

1) police have a lawful vantage point to observe item
2) needs to be immediately apparent that item is contraband
3) officer has lawful access to point of seizure

Question 21

Searches pursuant to a warrant

Answer 21

A warrant gives police authority to search only named places or people. Except: 1) contraband not named can be seized if in plain view; 2) right to detain occupants during search (but not right to search them.

Question 22

Warrantless searches

Answer 22

Warrantless searches are per se unreasonable unless i t falls into an established exception.

Question 23

What is a SILA?

Answer 23

Search Incident to Lawful Arrest: upon a lawful arrest (based on PC) can automatically search the arrestee + the area within his immediate control (wingspan or lunging distance)

Question 24

SILA: arrest in or right out of car

Answer 24

1) can automatically search person
2) if genuine access to interior of car after arrest, can search interior car and all containers within interior
3) if no genuine access to interior of car, can only check car if reasonable belief evidence related to crime of arrest in car.

Question 25

SILA: If arrested at home

Answer 25

1) limited to area within lunging distance and no authority to search entire house
2) If RS, other people home, and may put police at risk, can conduct cursory protective sweep (Terry sweep) but only where people could fit.

Question 26

Warrantless search: Automobile exception

Answer 26

1) can search car as long as they have PC
2) justified by inherent mobility and reduced expectation of privacy
3) Applies to all containers within vehicle where item could be found for which PC exists
4) can also impound car and search it later

Question 27

What is the special needs doctrine?

Answer 27

Can use checkpoints to conduct brief seizures/ limited searches without individualized suspicion or warrant because of public safety danger that cannot be addressed by complying with warrant requirements.

1) primary purpose must be need to search or seize to protect public from immediate danger
2) must be:
a. based on a fixed formula that deprives individual officers of discretion to select subjects
b. narrowly tailored in scope, to address the specific threat
c. conducted in location and manner that minimized citizen anxiety
3) can seize contraband that comes into plain view even if unrelated to public safety

Question 28

What is the border exception?

Answer 28

Custom official may, with no suspicion or cause, as an incident of national sovereignty:

1) stop vehicles at permanent checkpoints located at or near border
2) conduct routine searches of people and property

Question 29

Consent

Answer 29

if individual waives right to privacy by consenting to a search, search is reasonable even if no suspicion. Consent must be:

1) must be voluntary (totality of circumstances)
a) invalid if obtained by asserting fake warrant, fraudulently, under duress, or pursuant to unlawful police threat
b) if consent obtained followed unlawful seizure, its tainted, and consent and any evidence is invalid.

Question 30

Third Party Consent:

Answer 30

any person who has joint control or use of shared premises may consent to valid search, and evidence may be used against all residences
1) consent applies to common areas, not where D has exclusive control
2) reliance on consent is reasonable if person has actual authority or reasonable officer believes that person had authority
( cannot rely on consent when other person is present and objecting)

Question 31

Hot pursuit

Answer 31

may enter and search private dwelling while in hot pursuit of the fleeing suspect. May execute warrantless arrest of suspect on premises and seize any contraband observed in plain view pursuant to hot pursuit

Question 32

Exigent circumstances

Answer 32

warrantless search permissible when waiting to obtain a warrant will result in imminent destruction of evidence, escape of accused, or risk to police or others in the area

Question 33

Terry search (frisk)

Answer 33

Cursory, protective search for weapons or some other instrumentality that creates imminent danger to officer or others in close proximity.

1) justified only by RS that suspect is armed and dangerous
2) limited to suspects outer clothing to confirm or deny suspect is armed
3) If frisk/pat results in officer feeling something he knows immediately is a weapon or other contraband, office may seize it without a warrant pursuant to plain touch

Question 34

Terry frisk: cars

Answer 34

brief cursory look in car where police has RS that person stopped will have immediate access to weapon after getting back in car.

Question 35

Terry frisk: Home

Answer 35

cursory sweep of home on RS that others may be present and endanger officer

Question 36

Admin Searches

Answer 36

conducted for non-criminal purpose and justify lower standard of cause