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Criminal Procedure > 4th Amendment - Search > Flashcards

4th Amendment - Search Flashcards

1
Q

How to approach all unreasonable search & seizure issues

A
  1. Was there state action?
  2. Does the defendant have standing (reas. exp. of priv.)
  3. Did the police have a valid search warrant ?
  4. If no valid search warrant, does an exception to the warrant requirementof the 4th amendment apply?
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2
Q

What is a search?

A
  1. When gov’t conduct violates a reasonable expectation of privacy OR
    • MUST be a legit expectation
  2. When the gov’t physically intrudes upon private property for the purpose of getting information
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3
Q

What does a search trigger?

A

The reasonableness requirement of the 4th amendment

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4
Q

Standing

A

D has Reasonable Expectation of Privacy in the item or place searched

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5
Q

When is there automatic standing?

A

Court has found auto. standing where the search takes place

  1. in the suspects home
  2. in place owned by the suspect or
  3. where the suspect is an overnight guest of the ownerof the place
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6
Q

When is there sometimes standing?

A

There is a presumption of standing that can be overcome

  1. Suspect’s Property Seized
  2. Suspect legitimately present on prem. searched
  • Social guest more likely to have standing then someone on the prop for bus.
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7
Q

When is there NO Standing ?

A

These have been deemed held out to the public, so there is not reas. expectation of privacy

  1. Actions & Conversations in Public
  2. Phys. Characteristics (Handwriting, voice sample)
  3. Paint on Car
  4. Account Records Held by Bank
  5. Monitoring Suspect’s Vehicle in Public Thoroughfares
  6. Abandoned Prop (e.g. garbage left for collection)
  7. Open Fields
  8. Flyovers
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8
Q

Flyovers

A

Anything the police can see with the naked eye is considered “plain view”

  • BUT tech enhanced (high tech device not in gen. civ. use) searches of homes for contraband are searches covered by 4th Amend.
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9
Q

Location Searched - Home

A

The 4th Amendment protects against the unreasonable gov’t search of a “house”

  • Protection Extends to persons who have the right to immed. poss. of a dwelling (renter of apart. or dorm)
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10
Q

Location of Search - Curtilage of Home

A

The area immed. surrounding the hme may be covered by the umbrella of the home’s 4th amend. protection

  • To determine if the area is protected, this 4 factor test applies
    1. The prox. of the area to the home
    2. If the area is included within an enclosure surrounding the home
    3. The nature of the uses to which the area is put, AND
    4. The steps taken by resident to protect the area from observation by passerby
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11
Q

Open Fields Doctrine

A

Property that lies outside the curtilage of the home is not protected by the 4th amendment

  • Owner does not have a reas. (objective) expectation of privacy
  • Even if has subj. expectation based on the fact that the land is fenced, protected from pub. view, and no tresspassing signs posted
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12
Q

Overnight Guests in a Home

A

Guest has a reasonable expectation of privacy as to the areas of the home they have perm. to enter

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13
Q

Location Searched - Motel Room

A

Search of motel room by gov’t may be an unreasonable search

  • Motel Clerk’s consent to search is not sufficient to justify the search
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14
Q

Location Searched - Business Premises

A

Protected by 4th Amend.

  • BUT may be subj. to administrative searches
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15
Q

Location Searched - Prison

A

Prison Inmate has no reas. expectation of privacy in his cell

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16
Q

Objects Sought - Luggage

A

A pers. has a reas. expectation that items placed w/in his luggage will be free from purposeful, exploratory physical manipulation of the luggage

  • Exception - If there is a smell coming from the luggage, there is no reas. expec. of priv. (at least when smell arises from illegal substance)
17
Q

Drug Sniffing Dogs

A

Not covered by the 4th Amendment

  • b/c the only thing the search can reveal is the presence or absence of contraband

BUT is a search if it involves phys. intrusion onto const. protected prop.

18
Q

When papers & effects are transferred to a thrid party

A

Person no longer has a reas. expectation of priv. in the items

19
Q

Automobiles

A

Need reas. suspicion of law violation to stop an auto.

  • Exception - Checkpoints
    • Police can stop if:
      • stop based on neutral, articulable stds and
      • its purp. is closely related to an issue affecting automobiles
20
Q

Auto Stops & Immigration law enforcement

A

If purpose of stop relates to enforcement of immigration laws:

  • Any car can be stopped on random basis at the U.S. border w/out reas. suspicion of wrongdoing
  • Not at border - all cars can be stopped at fixed checkpoint w/out reas. suspicion of violation of imm. laws
    • BUT can’t be singled out & randomly stopped w/out particularized & objective basis
21
Q

Checkpoint for Purpose of finding witnesses to a crime

A

Not per se unresonable, so long as:

  1. Checkpoint stop’s prim. law enforcement purp. is to elicit evidence to help them apprehend indiv. (not vehicles occupants)
  2. The stop advanced a pub. concern to a significant degree AND
  3. The police approp. tailored their checkpoint stops to fit important ctiminal investigatory needs & to minimally interfere with liberties protected by 4th amendment
22
Q

Car’s VIN

A

No reas. expectation of privacy in vehicle ID number affixed to the car

23
Q

DNA Identification

A

Reasonable search that can be considered part of a routine booking procedure

24
Q

Government Informants

A

No reas. expectation of privacy in conversations carried out w/ gov’t informants or undercover officers

  • Everyone assumes the risk that the pers. she is speaking to is a gov’t informant so there is no 4th amend. claim if 1 party consented to the wiretapping
25
Q

Wiretapping & Bugging

A

Is a search under the 4th Amendment & therefore requires a warrant

26
Q

Pen Registers

A

Records only the numbers dialed on a phone

  • Don’t fall within the 4th amend. so don’t require a warrant
27
Q

National Security Surveillance

A

Under the Foreign Intelligence Surv. Act of 1978

  • Warrantless wiretapping of foreign communications is ok if:
    • there is no subst. likelihood that the surv. will acquire the contents of any communication to which a U.S. person is a party
28
Q

Attaching device to person’s body

A

4th Amendment Search if:

  • w/out consent,
  • in order to track that persons movements
29
Q

Attaching device to car

A

4th amendment doesn’t prohibit police from using tech. devices to enhance their ability to search

  • Radar detector, cpu to search license plates, surv. equip.
  • BUT phys. intrusion upon suspects prop. to install a tech. device may be a search
30
Q

Field Test of Substance

A

Field test performed on a substance to determine if substance is contraband is not a search for 4th amend. purposes

31
Q

What is required for a resonable expectation of privacy?

A
  1. D has subj. expectation of privacy by making an effort to shield the thing or the activity from the public AND
  2. The expectation is objectionably reasonable

Criminal Procedure (13 decks)

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