4th Amendment Flashcards
Stop & Frisk (terry v ohio)
Is a warrantless search
Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity
Exceptions to good-faith reliance (exception to warrant exception)
Exceptions to good-faith reliance- police cannot rely on a defective warrant obtained in good faith if:
- Affidavit completely lacks probable cause (i.e., no reasonable police officer would have relied on it),
- Warrant is defective on its face, (not precise regarding place to be searched or items to be seized)
- Police or govt. official lied or misled magistrate, or
- Magistrate has “wholly abandoned her judicial role” (not neutral or detached)
Inventory search
A type of warrantless search - police may search arrestee’s belongings or seized property when jailing an arrested suspect.
This includes the search of a vehicle and the closed containers within
If the arrest is pursuant to a serious offense, DNA samples are a reasonable police booking procedure
Administrative Searches, special rules
Administrative searches - govt. agencies may conduct routine searches or inspections of highly regulated businesses or industries (E.g., building code inspection, inspections for food safety, airline passenger searches)
- A warrant is required for inspections of private residences or commercial buildings
- Requires less particularity than standard warrants
- A general and neutral enforcement plan for the searches will suffice to validate the warrant
Detention to obtain a search warrant requirements
- Requires probable cause
- If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant
- Purpose must be to prevent destruction of evidence
Arrest, definition
An arrest occurs when police takes an individual into custody for purposes of criminal prosecution or interrogation
Border special rules (detention, searches)
Detentions – There is a diminished expectation of privacy at the border
- Officials may detain a traveler at the border if they have reasonable suspicion, she is smuggling contraband
- Cars can be stopped without any reason
- Searches can be done without a warrant, reasonable suspicion required.
Limitation (plain view search)
Limitations to plain view search - police cannot use technology not generally available to the public to view evidence that may constitute a plain view search (e.g., infrared scanners that can view through walls)Next
- Note- use of drones for plain view searches is unsettled law and thus unlikely to appear on the MBE
Emergency
Warrantless search - Exigent circumstances
Emergency- police can search property or seize evidence if justified by emergency circumstances
- E.g., a bomb threat or act of terrorism
- E.g., Police hear gunshots inside a house and a scream while patrolling
Plain view search rule (no warrant required)
Police may search from any place where they are legitimately present when viewing (i.e., when conducting the search) (no warrant required)
Police checkpoints rules
Police checkpoints - must relate to a vehicle-specific purpose
- A police checkpoint/roadblock that stops cars without individualized suspicion (e.g., DUI checkpoints), must:
- Stop cars using a neutral, articulable standard ( e.g., every fourth car); and
- Serve purposes related to automobiles and their mobility
- E.g., DUI checks relate to road safety, but drug checkpoints are insufficiently related to driving, and thus unconstitutional
Warrant requirements for electronic surveillance
- Probable cause that a specific crime is being or has been committed
- Warrant must name suspects subject to surveillance
- Warrant must describe with particularity the subject of conversations that can be surveilled
- Surveillance must be limited to short periods of time
- Surveillance must terminate when desired information is obtained and must be turned over to the court
(Think Joe Pesci on Goodfellas)
Knock and announce requirement (and exception)
Knock and announce requirement- police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord
- Exception- knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation
When a warrant must be executed?
Timing - search warrant must be executed without unreasonable delay after it is issued
Detention of occupants of a premises, concept and rule
An example of a detention
If police have a valid warrant to search premises, they may detain occupants for duration of the proper search.
Evanescent evidence
Warrantless search - Exigent circumstances
Evanescent evidence - police can search or seize evidence that could disappear if police were required to secure a warrant
- E.g., drugs that may be discarded, DNA evidence that may not last
Automobile search exception
- The car is searched because a probable cause exists (the probable cause arises before the search)
- If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for
Can a cell phone be searched after an arrest?
Limitation to an inventory search incident to lawful arrest: cell phones – police may not search digital information on a phone seized during an arrest without a warrant
Standing requirement for invoking 4thA protection
4th Amend. only applies if a person has a reasonable expectation of privacy (REOP) regarding the thing or place searched and/or the items seized
- Standing to challenge a govt. search requires a REOP
- REOP is determined by the totality of the circumstances
- No REOP for inherently public things
- E.g., handwriting, voice, location, odors, public records, things viewable from public space, garbage placed outside
- In Automatic Standing, there is always REOP (premises owned, habitated or possessed by D)
Search of international mail special rules
International mail
- Officials can open and inspect international mail if they have reasonable suspicion it contains contraband
Scope of Automobile search exception
Scope of permissible search:
- Police can search entire vehicle and all containers within the vehicle that might contain the object for which they are searching
- E.g., police may open packages or luggage that might contain evidence relating to the reason they searched the vehicle
- Police may search passengers and their belongings
Protective Sweeps
When lawful arrest occurs (no warrant required), police may sweep an area for officer safety or with reasonable belief that accomplices may be present
Difference stop and frisk vs. arrest
Stop vs. arrest - a stop is a brief detention, less than an arrest
- But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk
When a drug test is allowed?
Drug tests – random urinalysis is permissible for public school students participating in extracurricular activities
Electronic surveillance, requires a warrant?
Electronic surveillance (e.g., wiretapping, eavesdropping) that violates a reasonable expectation of privacy constitutes a search under the 4th Amend. and requires a warrant
Public school searches
Public school searches – to conduct a search, school officials must have reasonable grounds to believe the search is necessary
- Less burdensome standard than probable cause
- School search is reasonable if:
- Search offers a moderate chance of finding evidence of wrongdoing;
- Procedure for searching is reasonably related to the objectives of the search; and
- Search is not excessively intrusive
Search incident to a lawful arrest (no warrant required), requirements
Requirements for a search incident to a lawful arrest (no warrant required):
- Arrest must be lawful
- Search must be contemporaneous with the arrest
- Search must be limited to area within suspect’s reach or movement (i.e., where he could obtain weapons or destroy evidence)
Requirement for a warrant
-
Based on probable cause - usually a police affidavit demonstrating probable cause that the search or seizure will produce evidence
>> Affidavits- must contain facts showing probable cause
- May include information from anonymous sources
- If based on false information, warrant is invalid
- Precise on its face - warrant must describe, with reasonable precision, the place to be searched and/or items to be seized
- Issued by a neutral and detached magistrate
Exigent circumstances exception to search with a warrant
If exigent circumstances exist, police can search or seize evidence without a warrant
- Hot pursuit, evanescent evidence, and emergencies are forms of exigent circumstances justifying a warrantless search or seizure
Detention (difference with arrest)
A governmental seizure of a person that is less than a full custodial arrest. A Seizure of a person occurs when a reasonable person would feel that he was not free to decline the officer’s request or terminate the encounter.
Force or a submission to a show of force is required.
Accompanying searches after Automobile stops
Accompanying searches- police may search:
- Passengers and passenger compartment (but not the trunk) if officer reasonably believes weapons may be present
- >> Police can order passengers out of the vehicle
- Entire car may be searched if probable cause arises pursuant to the automobile search exception
- Note- automobile may also be searched incident to a lawful arrest
Third-party consent (search with no warrant required)
Third-party consent - search allowed if there is authority to consent
- Where multiple people have property rights (e.g., ownership, authorized use, occupancy), any single one can consent to the search of any area where they have authority to consent
- A resident’s right to consent trumps a nonresident (E.g., if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent)
- Scope of consent is dictated by the person present with highest authority to consent
- Refusal trumps consent- no consent if two persons with equal right to possession disagree on consent
What are the common govt detentions?
- Stop & frisk (Requires reasonable suspicion) (Terry v Ohio)
- Automobile stop (Reasonable suspicion)
- Stationhouse detention (Probable cause)
- Detention to obtain a search warrant (Probable cause)
- Detention of occupants of a premises
Automobile Stop (Detention) Requirements
Automobile stop - reasonable suspicion required
- To stop or pull over a vehicle, police must have reasonable suspicion that a law has been violated
- Pretextual stops- ulterior motive for a stop is OK if police have reasonable suspicion of any legal violation
Scope of plain view searches
Scope of plain view searches (no warrant required) – includes anything viewable from land or public property, even if only viewable through binoculars
-
Plain smell - included within plain view
- >> If a smell gives rise to probable cause from a place of legitimate police presence, they can search that item
Seizure based on plain view requirement
Seizure based on plain view - police may seize evidence in plain view without a warrant if:
- Police are legitimately on the premises from which they viewed the evidence to be seized;
- Criminal activity or contraband is immediately apparent; and
- Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime
Therefore, you don’t need a warrant but you need probable cause
Speaker risks on electronic surveillance
all speakers assume the risk that the person to whom they are speaking is wired and/or recording the conversation
- Therefore, police do not need a warrant if they get someone to wear a wire and talk to the suspect
- A speaker who makes no attempt to keep a conversation private has no reasonable expectation or privacy
Search incident to a lawful arrest, requires a warrant?
No, Police may search a lawfully arrested person and his immediate surrounding area without a warrant
Border searches special rules
Border searches
- At borders, officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion
- Border = any place where one can arrive in the U.S. from a foreign country (e.g., there is a ‘‘border’’ at Denver International Airport)
Allowable scope of stop & frisk
- Length - detention must be no longer than necessary to verify the suspicion
-
Frisk – if police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons
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Plain feel- if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item
- Officers cannot manipulate the item to develop reasonable belief - it must be plain touch only
- Evidence validly seized is admissible
-
Plain feel- if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item
What are the exceptions to the search warrant requirement?
- Search incident to arrest
- Plain view search
- Automobile search
- Valid consent to search
- Exigent circumstances
- Stop & frisk
Hot pursuit
Warrantless search - Exigent circumstances
Hot pursuit - while actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection
Scope of search (not included in the warrant)
Scope of search - police can seize any evidence of criminal activity they discover, even if not included in the warrant
- Basis is plain view exception to search warrants
- Police can detain people found on the searched premises
- >> But police cannot search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists
In which occasions there is an automatic standing?
Automatic standing- REOP always exists if D either:
- Owns, has a right to possess, or lives in the premises to be searched, or
- Is an overnight guest of the premises to be searched
Can you consent to a search? what is the scope?
Yes, With valid consent, police may search anything (no warrant required)
Scope of consent - can be limited by consenting party
- Violation of scope renders the entire search non- consenting
Reasonableness of a search or seizure test
- Is the government doing the S&S?
- 4th A doesn’t protect S&S made by privates (only authorized by Govt)
- Does D have a standing?
- Reasonable expectation of privacy test
- Is there a valid search warrant?
- If there is no valid search warrant, was there a valid exception to the search warrant requirement?
Immigration raids
Immigration
- Officials may raid a business to determine citizenship status of its employees
Automobiles search (after an arrest) what can be done?
Automobiles search without a warrant after an arrest- after arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:
- Arrestee is unsecured and may access the vehicle interior, or
- They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle
- Police cannot search trunk without probable cause or consent
- Breathalyzer- a warrantless breathalyzer test is valid following a lawful arrest based on probable cause of drunk driving
What are the requirements for an arrest?
Probable cause is always required for any valid arrest
- Probable cause = trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime
Warrants are rarely required for arrests
- Unless an arrest occurs in the arrestee’s own home, the govt. does not need a warrant to make an arrest
- A warrant is not required for an emergency arrest occurring in the arrestee’s home
General rule for searches and seizures
Govt. searches and seizures of evidence must be reasonable under the 4th Amend, which requires a valid search warrant, unless one of the six exceptions applies
- Search incident to arrest
- plain view search
- automobile search
- valid consent to search
- exigent circumstances
- stop & frisk
Good faith exception rule (simple)
Exclusionary rule does not apply if police act in good faith on an invalid search warrant
Requirements for valid consent? (Searchless warrant)
Requirements for valid consent of a search without a warrant:
-
Voluntarily and intelligently made
- Police cannot falsely claim legal cause to search (no lies)
- Police have no obligation to inform suspects that they have a right to refuse consent
-
Person giving consent has authority to consent
- Authority to consent must be reasonably apparent
Difference between an arrest an a detention
Differences: - While both are seizure (a person believes he is not free to leave or terminate the encounter because of force or a show of force)
- Detention requires reasonable suspicion, an arrest requires probable cause (both can be warrantless, except if the arrest doesn’t occur in a public place, then warrant is needed)
- An arrest requires custody (not free to leave) and also for purposes of criminal investigation or prosecution
Knock and Wait and Exclusionary Rule relation
When police doesn’t use the know and announce rule, the evidence seized is not affected by the exclusionary rule
Because police with probable cause and a valid warrant are already entitled to an entry and search, violation of the simple knock-and-announce rule has not been deemed grave enough in the federal courts or in most states to justify suppression of the evidence
