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Crim Pro > 4th Amendment > Flashcards

4th Amendment Flashcards

1
Q

What does the 4th amendment guarantee?

A

You have the right to be secure in (1) persons, houses, papers, and effects against (2) unreasonable searches and seizures. Warrants must have (1) probable cause supported by (2) oath / affirmation and (3) particularly describe the place to be search and the person / thing to be seized

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2
Q

Katz Test (2-step)

A

Katz: Two step test to determine if there was a search or not:
• Was there a subjective expectation to privacy?
• Was the expectation reasonable (based on society’s expectation)?
• + A trespass on effects is a search (Jones)

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3
Q

Open Fields

A

The police can enter and search open fields without a warrant because the 4th amendment does not extend to open fields and there is no legitimate expectation of privacy in an open field. (Oliver v. US; Hester v. US)

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4
Q

Curtilage

A

The open fields doctrine does not extend to the curtilage of a person’s property. There are four factors to determine what the curtilage of a person’s property is (US v. Dunn):
• Proximity of the area claimed to be curtilage to the home
• Whether the area is included in an enclosure surrounding the home
• The nature of the uses to which the area is put
• Steps taken by the resident to protect the area from observation by people passing by

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5
Q

Aerial Searches

A

The police can enter public and navigable airspace without a warrant to view a person’s yard. There is no reasonable expectation of privacy from a flying device above the property. (Ciraolo & Riley)

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6
Q

3rd Party Doctrine

A

No warrant is needed to obtain information that is given to a third party, there is no reasonable expectation of privacy to this type of information.

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7
Q

3rd Party Doctrine - Carpenter

A

For cell phone location records, the 3rd party doctrine does not overcome a claim for 4th amendment protection. Obtaining cell phone location records would be a search. (Carpenter)

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8
Q

3rd Party Doctrine - Financial Records

A

The government can request documents from a bank and the request does not constitute a search because there is no reasonable expectation to privacy when you give the bank the information. (Cal. Bankers Assoc v. Shultz)

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9
Q

3rd Party Doctrine - Pen Registers

A

The use of a pen register does not constitute a search because the act of voluntarily disclosing the information (dialing a number) and sending it to a third party means a person has no reasonable expectation to privacy of those numbers. (Smith v. Maryland)

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10
Q

Thermal Imaging

A

Information obtained by sense-enhancing technology, especially when not publicly available, from the interior of a home that could otherwise not be obtained without a physical invasion is a search. (Kyllo)

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11
Q

Search of Trash

A

There is no reasonable expectation to privacy when trash is placed out in a public street where it is common knowledge that others can obtain the trash. It was also conveyed to a third party to sort the trash. (Greenwood)

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12
Q

Public Behavior

A

 There is no reasonable expectation to privacy when you are traveling in a vehicle on a public road. The police can track a beeper placed in a package that a person accepts and travels with on the way to a person’s home but not once they arrive inside the location. (Knotts & Karo)

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13
Q

Search with Dogs

A

The use of a police trained dog during a lawful traffic stop, or in public for drugs, generally does not implicate legitimate privacy interests because the dog is typically trained to find a particular drug and does not search wide. (Caballes)

  • A dog sniff at a home constitutes a search. (Jardines)
  • The police cannot hold a person longer than necessary to conduct the business for the reason the police pulled a person over and so a dog sniff has to fit within that timeframe. (Rodriguez)
  • Dog sniffs can show probable cause. (Harris)
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14
Q

Probable Cause

A

To establish probable cause, the courts will look to the totality of the circumstances. Totality of the circumstances includes: source of information, amount of detail, corroboration, officers opinions, nature of information. (Gates; Wesby)

  • To determine if a police officer has probable cause, the court will examine the events leading up to the arrest viewed as an objectively reasonable police officer. The officer has to have a fair probability of criminal activity. (Pringle; Whren)
  • The police are allowed to make reasonable mistakes of law and these reasonable mistakes will not invalidate a seizure under the 4th amendment. (Heien; Devenpeck)
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15
Q

Warrants

A

A warrant must be based upon (1) probable cause and supported by an (2) oath or affirmation and (3) particularly describing the place to be searched, and the persons or (4) things to be seized.

  • Particularly describe the place: The warrant must contain a description of the place to be searched but the description can be broad and use catch-all language. (Andresen)
  • Things to be seized: The warrant must have on the face of the warrant a description of what is to be seized, the warrant cannot just describe the place. (Groh)
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16
Q

Anticipatory Warrants

A
  • The police can obtain an anticipatory warrant so long as they have probable cause that specific items will be at a specific place and the warrant can be based on an affidavit stating that a search will only occur if certain events take place. (Grubbs)
  • While executing a warrant to find specific items related to a crime, the police can search anywhere. There is not a 1st amendment limitation on the search (can search newspapers). (Zurcher v. Stanford Daily)
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17
Q

Warrants to search computers

A

Information that the police are taking must be relevant to the warrant but the warrant does not need to describe each file in particular. All computers within a premises can be seized and searched with a valid warrant.

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18
Q

Executing Warrants - Detain

A

While executing a warrant, the police can detain and question people in the immediate vicinity the police are searching. Bailey set out three factors to consider if a person is in the immediate vicinity: within the lawful limits of the property, within sight, and the ease of entry. (Summers, Bailey & Mena).
- A warrant is supposed to be executed during the daytime (6a-10p) and within 14 days, both unless otherwise authorized.

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19
Q

Executing Warrants - Knock and Announce

A

When executing a search warrant, the police must knock and announce their authority to search the premises and wait a reasonable period of time before entering. (Wilson)

  • If the police have a reasonable suspicion that knock and announce would lead to danger, futility, or destruction of evidence they can skip knock and announce. (Richards v. Wisconsin)
  • If the police violate the knock and announce rule, the exclusionary rule is not invoked because evidence obtained later is not related to the knock and announce rule. (Hudson)
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20
Q

Executing Warrants - Mistakes

A

The police are allowed to make honest and reasonable mistakes. (Garrison). A reasonable mistake can include that the police did not realize the person had moved. (LA County v. Rettele).

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21
Q

Executing Warrants - Use of Force

A

Most force is reasonable – battering rams and stun grenades allowed.

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22
Q

Executing Warrants - Issued by Magistrate

A

Warrants cannot be issued by a prosecutor and the person cannot be paid per warrant.

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23
Q

Exigent Circumstances - Exceptions to Warrants

A

A warrant is not needed in a situation where there is no time to get a warrant if the police have probable cause. Situations that typically entail no time to get a warrant include: hot pursuit, safety, preventing destruction of evidence.

24
Q

Exigent Circumstances - Hot Pursuit - Exceptions to Warrants

A

The police does not need to get a warrant to search if they are chasing someone immediately after a crime with a continuous pursuit if the search is contemporaneous with discovery of suspect and searching where the police reasonably believe suspects may be found. (Hayden)
• Immediately after means that the police must get a warrant to search a house if they are not in hot pursuit / chase into the house. (Payton).
• A minor offense will not count for hot pursuit. (Welsh)

25
Q

Exigent Circumstances - Safety - Exceptions to Warrants

A

The police can enter a building without a warrant when they have an objectively reasonable basis to believe that the occupant is seriously injured or threatened with such an injury. (Brigham City)

26
Q

Exigent Circumstances - Destruction of Evidence - Exceptions to Warrants

A

The police can enter and search if they are concerned the evidence will be destroyed unless they created the circumstance in which the evidence would be destroyed (for example, if the police threaten to break in would violate 4th). (Kentucky v. King)
• DUI: The alcohol blood content goes down in a person but that does not create an exigent circumstance for destruction of evidence – a warrant is generally required for a blood draw. (Missouri v. McNeely)
• States may not criminalize a person’s refusal to submit to a blood test in the absence of a warrant. (Birchfield)

27
Q

Exceptions to Warrant - Plain View / Plain Touch

A

The police can seize contraband or evidence of crimes that are in plain view or plain touch so long as they do not manipulate objects to put them in plain view or plain touch. (Arizona v Hicks & Minnesota v Dickerson)

28
Q

Exceptions to Warrants - Automobiles

A

A police officer may search an entire vehicle, including mobile homes, if the officer has probable cause to believe the car has evidence or contraband. (Carney and Maroney)

  • Containers: If the police have probable cause to search a car, they can also search containers and passenger property in the car. (Acevedo and Wyoming v Houghton) (Case where police receive tip of illegal substance mailed from Hawaii – car picks up – police can search containers in car)
  • Cars in Curtilage: The police cannot conduct warrantless entry of property to conduct a search of a car. (Collins)
29
Q

Exceptions to Warrants - Searches incident to arrests

A

Police officers are allowed to search a person’s grab area – the area where a person may be able to grab something dangerous or to destroy evidence without showing actual threat of danger or destruction of evidence. (Robinson)
• Robinson does not extend to an entire house - police cannot search an entire house under the grab area incident to arrest exception. (Chimel)
• Robinson does not extend to cell phones - Police officers cannot search a cell phone without a warrant on arrest because if the person is arrested, they can’t destroy the evidence and the cell phone won’t endanger the police. (Riley)
• There must be an actual arrest for this warrant exception to apply – a citation does not count. (Knowles)

30
Q

Exceptions to Warrants - Searches incident to arrests - CARS

A

The police can search a person’s car, including passenger compartments, incident to arrest if the arrestee is unsecured and within reach of car or reason to believe there is evidence of crime in car. (Gant)

31
Q

Exceptions to Warrants - Inventory Searches

A

The police, or a third party contracted by the government, can conduct routine searches of a person’s property (bags and cars) for community caretaking purposes. (Opperman and Lafayette) Community caretaking purposes promote:
• Protection of the owner’s property while it remains in police custody
• Protection of the police against claims or disputes over lost or stolen property
• Protection of the police from potential danger

32
Q

Exceptions to Warrants - Protective Sweeps

A

Police can conduct cursory searches through a house during an arrest to ensure officer safety and once the arrestee is found the justification to search ends – geared towards officer safety. (Buie)

33
Q

Exceptions to Warrants - Consent search

A

A person can consent to a search and the search is permissible without a warrant or probable cause (can’t be from duress or coercion) so long as the search is reasonable (generally, the citizen must say no). (Bustamonte)
• Consenting to search while riding bus, even though it may seem like there is no other option, is not coercion. (Drayton)
• Co-occupants can consent on behalf of one another, unless the co-occupant is present and objects. (Randolph and Fernandez)

34
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - Code Enforcement / Health and Safety

A

The 4th applies to safety code inspections but the government does not need traditional probable cause because an administrative warrant is sufficient, say for routine inspections.

35
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - Business Records

A

No probable cause is needed to search a closely regulated business because the statutory scheme takes place of the warrant so long as there is (1) substantial government interest that informs the regulatory scheme, (2) warrantless inspections are necessary to further the regulatory scheme, and (3) the statute’s inspection program adequately provides substitute for warrant by providing notice and limiting discretion.
• The statute must provide an opportunity for precompliance review by a neutral decision maker. (Patel) (Hotel case where LA hotel ledger book ordinance was found unconstitutional.)

36
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - Border Searches

A

The 4th amendment’s balance of reasonableness is different at the border and fixed checkpoints than in the interior because the police are allowed to conduct routine searches of a person and their belongings, including mail sent and laptops, without suspicion. (Flores-Montano and Ramsey and Cotterman)
• Rationale for suspicion-less searches include: protecting border, rights of the sovereign to decide who comes in with what, and traditional right of government to search.
• Reasonable suspicion would be required to send a laptop off site for forensic searches like in Cotterman.
- Non-routine Detentions
• Detention of a traveler at an international border is justified if the police reasonably suspect the traveler is smuggling illegal drugs in their body. (Montoya-Hernandez)

37
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - DUI Checkpoints

A

The police can, without suspicion, conduct DUI checkpoints for safety reasons only, not to discover a crime, so long as the checkpoint is reasonable, and the public safety is balanced with minimal intrusion. (Sitz and Edmond [Edmond, searches for drugs at checkpoints are unconstitutional because it serves a broader law enforcement purpose])
• Witness checkpoints are ok
• Undocumented person search is ok
• Terrorist stops and child abduction searches are likely ok

38
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - School Searches

A

There is a greater government need to protect students than there is an interest in protecting privacy of students making searches ok with a lower threshold, reasonable suspicion (not probable cause). (Safford Unified)
• Random drug testing is ok with no suspicion
• Search of a backpack is ok with reasonable suspicion
• Strip searches are ok with probable cause or reasonable suspicion of dangerous drugs

39
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - Gov Employees

A

The government can search an employee without a warrant if justified at inception and narrowly tailored, such as the probable cause requirement would be impracticable. (Quon – Illegal activity on government cell phone)

40
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - DNA Checks

A

A search of DNA to serve law enforcement purposes is not constitutional without a warrant. (Ferguson) [Police checking blood/DNA of pregnant women for coke]
• Police can take DNA samples, so long as the sample is minimally intrusive, at booking of an arrestee for the purpose of ID. (Maryland v. King)

41
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - Jail Strip Searches

A

Anyone in jail can be strip searched at any time for any reason. (Florence v. Board)

42
Q

Special Needs (No Warrant - No 4th A) - Administrative Searches - Probation & Parole

A

Police only need reasonable suspicion to search a person on probation. (Knights)

Police can search a parolee anytime without a warrant or suspicion because parolees are technically in Dept. corrections (Samson)

43
Q

Seizures and Arrests - Arrests

A

The police can arrest a person without a warrant so long as the police have probable cause and the arrest is in public – an arrest warrant is required for house arrests unless there is an exception. (Watson)
- People must present complaint to judge within 48 hours of arrest (absent extraordinary circumstances) if the arrest was improper. (Riverside v. McLaughlin)

  • The police are allowed to arrest for misdemeanor offenses. (City of Lago Vista)
  • Arrests that violate state law must still comply with 4th A. (Virginia v. Moore)
44
Q

Seizures and Arrests - Consensual Encounter

A

Under the totality of the circumstances, would a reasonable person believe that they were not free to leave? There is no reasonable suspicion required to establish a consensual encounter. (Mendenhall)

  • If yes – seizure
  • If no – consensual interaction
45
Q

Seizures and Arrests - Not a seizure / When does a seizure start?

A 
o	Airports (Mendenhall)
o	Street encounters
o	Bus sweeps
o	Automobile passengers 
o	Police Chases (Hodari)

A seizure occurred when a suspect is tackled, not when the suspect was running. Anything that happens before is not subject to 4th A search protections.

46
Q

Seizures and Arrests - Terry Stops

A

The police can stop a person, based on reasonable suspicion that they are involved in criminal activity, and detain the person briefly for questioning. During a Terry stop, the police can ask for ID. (Terry and Hiibel)

  • Police need to have more than a “hunch” but a reasonable police officer uses the totality of the circumstances to determine if there is reasonable suspicion. Can be: outline of weapon in clothing, furtive motions (movement towards an area with weapon), information leading to believe.
47
Q

Seizures and Arrests - Terry Stops - Reasonable Suspicion

A

Look at the totality of the circumstances to determine if a police officer has reasonable suspicion. (Arvizu) [Put the circumstances together to determine if there is a reasonable suspicion. In this case kids waving, the road they took (rural), and the way people acted when a cop was present to determine there was RS.]

Informants

  • Anonymous tips are allowed if they predict a future activity (White and J.L)
  • Police can pull someone over based on the totality of the circumstances if they receive an anonymous tip that the person is driving under the influence. (Navarette)

Suspect Escaping (flight)

  • Fleeing, or running away, when you see a police officer is reasonable suspicion for an officer. (Wardlow)
  • Depends on what the police officer sees / circumstances but not high bar

Reasonable suspicion based on profiling
- Profiling a person is not “per se” prohibited. (Sokolow)

48
Q

Use of Force

A

The Graham standard: Use of force is viewed from the perspective of an objectively reasonable police officer’s standpoint in the moment, not hindsight (does not matter if the officer had bad motives bc it is an objective standard). (Graham)

Fleeing felon laws:

  • Police are allowed to shoot a person if they believe the person is a danger to the community and the person is fleeing.
    (i) AB 392 – California’s “fleeing felon law”
    (ii) Tennessee has a law that was unconstitutional insofar as it authorized deadly force against an apparently unarmed, non-dangerous fleeing suspect. (Tennessee v. Garner)
49
Q

Exclusionary Rule

A

Material obtained deliberately or recklessly in violation of the constitution cannot be introduced at trial against a criminal defendant (“fruit of the poisonous tree”).

  • Does not apply for violations of knock and announce. (Hudson)
  • Does not apply when police follow the law as it existed at the time of the search, even if the law changes. (Davis)
  • Does not apply if police violate the 4th A negligently or in good faith. (Herring)
50
Q

Exclusionary Rule - People in Cars (Standing)

A
  • Any aggrieved (person in a car) person could challenge a violation (Jones and Brendlin).
  • A passenger in a car does not have any reasonable expectation to privacy – to a third party’s property. (Rakas)
  • A driver of a car – even a rental car – has a reasonable expectation to privacy. (Byrd) [think of property rights and the right to exclude]
51
Q

Exclusionary Rule - Overnight Guests

A

Commercial visitors have no legitimate expectation of privacy (Carter) but a guest at a person’s house does (Olson) have a reasonable expectation to privacy. Factors to consider when determining whether there is a reasonable expectation of privacy: duration of visit, frequency of visits, relation to homeowner.

52
Q

Exclusionary Rule - Exceptions

A

Exceptions include: Independent purpose, inevitable discovery, attenuated taint, use for impeachment, good faith exception

53
Q

Exclusionary Rule - Independent Purpose (Exception)

A

The police did something wrong but independently find evidence of a crime lawfully. (Murray)

54
Q

Exclusionary Rule - Inevitable Discovery (Exception)

A

The police would inevitably find evidence in a lawful manner. (Nix v. Williams) [Police, in violation of request for counsel, convince Williams to tell them where he buried a dead girl he kidnapped]
• The police should not be put in a worse position than if no illegality was discovered.

55
Q

Exclusionary Rule - Attenuation of the Taint (Exception)

A
  • Under the attenuation doctrine, evidence obtained after an unlawful arrest can be introduced if the connection between the police misconduct and the confession or other evidence “has become so attenuated as to dissipate the taint.” (Wong Son) The Brown factors determine whether the taint has dissipated: temporal proximity between illegal act and obtaining evidence, presence of intervening circumstances, purpose and flagrancy of the official misconduct.
  • A warrant will break the chain for attenuation (Strieff)
56
Q

Exclusionary Rule - Good Faith (Exception)

A

The exclusionary rule does not apply when there has been a good faith or negligent violation. (Leon)
• Facially valid warrants (Leon)
• Court clerk errors (Evans)
• Following existing appellate law (Davis)

Crim Pro (4 decks)

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