4th Amendment Flashcards
When does the 4th Amendment apply to government action?
- Implicated is government action against the people
- regulates actions of govt officials acting within scope of employment
- Controls govt conduct and does not regulate private conduct
- does not apply to a private search by a private citizen but does apply if that citizen is acting as an instrument or agent of the govt or controlled, directed, instructed by govt (ex. informants/cooperating defendants)
- Foreign govt searches - not 4th amendment - must still comply w/ 5th Amendment due process
- 4th amendment pertains to the right of the people to be secure in their houses, papers, and effects
The 4th Amendment contains what two distinct clauses?
- First it requires that all searches and seizures be reasonable
- Mandates that Probable Cause exist before search or arrest warrants may be issued & warrants particularly describe the place(s) to be searched & person(s) or things to be Seized
What is the most important word in the 4th Amendment?
Unreasonable
What are warrants intended to do?
PC required
particularly of descriptions required
scope of search always applies
What are common REP areas?
The body Vehicles Homes Containers Curtilage Open Fields Govt Workplaces Abandoned Property Mail
How do you test for REP?
Two Prong Test
- Individual must have exhibited an actual (subjective) expectation of privacy (has the person involved, by word or order, demand privacy)
- that expectation must be one that society is prepared to recognize as reasonable
What is the body when referring to common REP?
- No REP in areas exposed to public view
- a physical intrusion, penetrating beneath the skin, infringes on an exception of privacy that society is prepared to recognize as reasonable
What is the vehicles when referring to common REP?
- No expectation of privacy in the exterior of a view
- Owner/operator generally has REP for interior - REP in what is concealed (console/glove box. trunk, under seat)
- An officer may lawfully observe an item sitting on the front seat in open view (does not necessarily give the officer the right to access the item, but may provide PC to allow entry)
- A passenger in a vehicle that he neither owns nor leases typically does not have REP (will retain an expectation of privacy inside any personal property brought into car - purse)
- REP when listed as an authorized driver on a rental agreement for duration of rental period
- GPS attached to a vehicle constitutes a search
What is the Home when referring to common REP?
- High expectations of privacy within confines of home
- ownership is important but not the controlling factor
- Owner REP persists in a vacation home even if only occupied a few weeks a year
- Overnight guests entitled to REP
- Squatters dwelling social visitor and commercial visitors do not have REP in the home visited
- REP in business premises, but only in those areas not generally open to public
- Protection afforded to homes has been extended to hotel and motel rooms
a. starts at check in
b. ends at check out - No REP in common areas - stairwells, hallways, ect. (hotels, motels, condos, apts)
What is the containers when referring to common REP?
- have REP in containers (purses, briefcases, backpacks, ect) at least where those containers do not reveal their contents by the way they are designed
What is Curtilage when referring to common REP?
- area to which extends the intimate activity associated with the sanctity of the home and the privacies of life
- considered part of the home and individual has REP in the curtilage surrounding the home
- consider the front, side, and backyards as curtilage
- no trespassing signs are not controlling - all considered private property
What are the four factors that are considered in determining curtilage?
- proximity of the area to the home itself (no specific distance)
- whether area is included within a single enclosure surrounding the home
- use of the area
- steps taken to protect the area from observation by people passing by
What is Open Fields when referring to common REP?
- include any unoccupied or undeveloped area outside the curtilage
- No REP in open fields
- Observations made from open fields are lawful and evidence found is lawfully seized and admissible
- Even if area is fenced and the owner has posted “no trespassing” signs, LE officers may enter for legitimate LE purposes
- An open field not be “open” or a “field”
What is abandoned property when referring to common REP?
- No REP in abandoned property
- May abandon an exception of privacy in an object by denying knowledge or ownership of it
- key to determining REP in garbage is the location - REP inside, no REP all curb for pick up
- Outside of the home, but within curtilage = no bright line rule - if readily accessible to the public from the street, may not have REP
What is mail when referring to common REP?
- REP only in the contents of first class and higher mail sent through USPS
- No REP on outside of a letter or package (words written on envelope)
- REP in contents of letters and packages sent through private carriers (FEDEX, DHL, UPS)
What is Govt Workplaces when referring to common REP?
- Govt Employees can establish REP in their offices, filing cabinets and computers
- If REP exists, a supervisor may not consent to a search
- Even when REP exists, a warrantless search may be conducted under certain circumstances
- A lawful intrusion must be justified in inception
- Purely criminal activity = PC and a Warrant (or exception) required
What are the exceptions when conducting a warrantless search in Govt Workplaces?
- Work related materials - No RS or PC required
- Employee misconduct - RS required
- Mixed motive/dual purpose - need RS (no warrant required)
What are search methods and devices when discussing the 4th Amendment?
Canine Sniffs
Knock and Talk
Sensory Enhancement
Aircraft Over Flight
What is Caine Sniffs when referring to a search method and device?
- Use of dog to sniff a container, such as luggage, located in a public place, does not intrude into REP and is not considered a search
- Do not need RS and does not violate 4th when conducing during a lawful traffic stop
- Dog sniffing at the door of a house triggers the 4th and is not allowed
- Dogs training and track record are apart of the totality of circumstances that can establish PC
What are knock and talks when referring to a search method and device?
- LE can do what the general public can do = implied consent
- No REP if intent (such as w/drug sniffing dog)
What are sensory enhancements when referring to a search method and device?
Binoculars and telescopes used to observe public conduct does not turn surveillance into a search
- when binoculars and telescopes are used to observe conduct taking place within a persons residence use may constitute a search
- Officers use of a flashlight and searchlights for illumination does not constitute a search
- Darkness does not create REP that would otherwise not exist in daylight
- Use of thermal image to detect the heat emanating from inside a residence constitutes a search, requiring a warrant or exigent circumstances
- Employing technology that is not used by the general public to obtain info about a homes interior that could not have been obtained without physical entry constitutes a search
What are aircraft overflights when referring to a search method and device?
- Officers may operate in navigable airbase (FAA Regs) to the same extent as private persons
- No warrant to travel in public airways to observe what is visible to the naked eye
What is a hunch?
Mere suspicion
What are the types of seizures?
inspection
investigative detention/Stop (RS)
arrest (PC)
What is Property Seized?
When there is some meaningful govt interference with an individuals possessory interests in that property
What are actions based on a hunch?
Voluntary Contact
Surveillance
Interview witnesses, co-workers, ect
examine public records (RAP Sheet, Property records, ect)
What is Reasonable Suspicion (RS)?
Facts and circumstances that would cause a reasonable LEO to conclude that criminal activity might be afoot
What is Probable Cause (PC)?
Facts and circumstances that would cause a reasonable LEO to conclude that there is a fair probability of criminal activity
What is a Investigative Detention (Terry Stop) (RS)?
- Investigative detention - police-citizen encounter- compelled, brief, investigator stop
- LEO must have a reasonable, articulable suspicion that criminal activity is afoot and the person detained is somehow involved
What are the requirements of a terry stop?
- Must have reasonable suspicion (flight alone is not enough) criminal activity is afoot
- Officer needs not to be fully convinced that a crime is being committed, or even that he or she is stopping the suspect
- accepts the risk that officers may stop innocent people
- While RS is lower standard than PC, officer must still have explainable (articulable) reasons to justify a temporary seizure of a person (must be reasonable in time, place, and manner)
Criminal activity afoot means the officer must reasonably suspect that:
- A crime is about to be committed
- A crime is being committed
- A crime has been committed
To determine whether RS exists, courts look at the totality of circumstances:
- Officers are allowed to draw on experiences and specialized training to reach conclusions based on all facts and circumstances available that an untrained person might not reach
What is the totality of the circumstances?
About the target, about the place, and about the time of day
What can an officer based on RS?
Detain a person if reasonable in time, place, and manner and detain property if reasonable in time place and manner
If during an investigative detention, an officer develops RS that the individual is presently armed and dangerous he may what?
He may conduct a limited pat-down search of the individual for weapons
What are the limitations of a Terry Frisk?
Limited to where you can look, how you can look and what you can look for
What is a terry frisk search?
- Head to toe
- Areas accessible to hands is a good starting point, but you are not limited to there
- may lawfully handcuff the subject
- look, feel, crush, twist method
What if i feel something during a terry frisk?
- hard object that could be a weapon, reach in and grab it
2. soft/small object that is immediately apparent to the LEO to be contraband/evidence, seize it
What wont work when trying to articulate a justified terry frisk?
Officer Safety
What are factors of a Terry Frisk?
- Developing RS to Frisk = Totality of Circumstances
- Past Criminal History or association w.violent gangs
- Bulge in Suspects CLothing
- Furtive or other movements (Adjusting/Concealing weapon)
- Suspects words and actions (refusing to comply)
- Tip from a reliable informant
- RS suspect has committed a crime that by its nature indicates the likelihood the perpetrator is armed and dangerous
What is plain touch doctrine?
incriminating nature of the item must be immediately apparent, officer must have PC that the object encountered is contraband or criminal evidence based on what he initially felt
Frisk of containers:
- RS that a person is armed and dangerous authorizes frisk of containers in their possessions
- soft sided- open and look inside
- Hard sided: open and look inside, locked - separate from person so no easy access
When detaining vehicles you:
- a seizure based on RS of an occupant vehicle accompanied by RS the occupant is armed and dangerous authorizes a frisk of the driver and passenger and passenger compartment only
- Includes frisk of closed but not locked containers
- key is accessibility/reasonableness
When conducting Frisks:
- justify the stop-can be consensual contact
- Justify the frisk
- Why, based on your knowledge, training and experience the object could have been a weapon or was immediately apparent as contraband or criminal evidence (Physical evidence)
Understanding what Terry Frisks and Stops are you must know
Know as much about the person as you can and understand where and why you are dealing with them
How do you get to RS and PC?
- Training and experience
- info about subject know to LEO
- Behavior upon sight of LEO
- Subject fits a profile
- Time and location and activity
- Suspicious pr initial conduct
- Info which corroborates a tip
- Info from other sources
