4th Amendment - Search Warrant Requirements & Exceptions Flashcards
What are the requirements for a valid warrant?
Warrant must be issued by:
- A neutral and detached magistrate
- Based on Probable Cause AND
- Describe w/ particularity the thing to be seized or the place to be searched
Facts Supporting Probable Cause
May come from any of the following sources:
- Officers pers. observations
- Info. from reliable, known informant or from unknown informant that can be indep. verified OR
- Evidence:
- seized during stops based on reas. suspicion,
- Evidence Discovered in Plain View OR
- Evidence obtained during consensual searches
What is Probable Cause ?
Facts & Circ. that would warrant a reas. pers. to conclude that:
- The indiv. in quest. has committed a crime OR
- Evidence of crim. activity can be found at a particular location
Evaluated by an obj. standpoint - what an officer subjectively believed doesn’t matter
Particularly Describe Place & Items
- The validity of the warrant is limited to the items described
- Once the items identified in the warrant have been discovered, warrant doesn’t auth. further exploratory search of the prem.
Exceptions to the Warrant Requirement
- Lawful Arrest
- Automobile Exception
- Plain View
- Consent
- Hot Pursuit
- Stop & Frisk (aka Terry Stop)
- Special Needs Exception
Search Incident to Lawful Arrest - Timing
- Arrest must take place b/f the search
- Search must be contemporaneous in Time & Place with arrest
Search Incident to Lawful Arrest - Scope
Arrestee’s person & area w/in immed. control
- limited to the suspect and her wingspan (area w/in D immed. controlwhere she might reach to destroy evidence or get a weapon)
- Includes:
- pockets of clothing & Open containers in pockets
- Containers in immed. assoc. with the pers. (purse)
- If large enough to conceal a weapon or evidence of crime
- NOT Cell Phone (must get war. to search)
If a suspect is arrested in a home, what is the scope of a search incident to a lawful arrest?
The area within his lunging distance NOT the entire home
What is the knock and announce rule?
Police must normally knock and announce their identity b/f entering a home to execute a warrant
- Exceptions: Knock & Announce not req. if police have reas. susp. to believe that doing so will:
- Endanger Officers
- Lead to the destruction of evidence OR
- Lead to flight of the suspect
If police have a reas. suspicion that others in the home may put them at risk, what action may the police take?
Police can conduct a cursory protective sweep to find people lying in wait with the search
- limited to places where people may hide
Vehicle Search Incident to Arrest
4th Amend. requires that law enforcement demonstrate either:
- That the arrestee is w/in reaching distance of the passenger compartment at the time of the search,
- and As a result, may pose an actual & continuing threat to the officer’s safety OR
- A need to preserve evidence from being tampered with by the arrestee OR
- That it is reasonable that evidence of the offense or arrest might be found in the car
Impounded Vehicle
A legally impounded car may be searched as part of a routine inventory search
- Including closed containers
- Warrantless search doesn’t need to take place at the time the vehicle is seized
What is the authority to conduct a search incident to a citation ?
There is no auth. to search
Existence of Exigent Circumstances
Warrantless entry into home or bus. is presumed unlawful unless the gov’t demonstrates both prob. cause & Exigent Circ.
- Test - Totality of the Circumstances
- Police can’t create the exigency by threats or conduct that violates the 4th Amendment
Exigent Circ. - Hot Pursuit
Police can enter a private building during hot pursuit, to search the building while they are present & to seize evidence found there if:
- Police have PC to believe that an indiv. has committed a felony AND
- they are pursuing him to arrest him
Exigent Circ. - Emergency Situations
warantless search is ok if there is a reas. apprehension that the delay required in obtaining a warrant would result in:
- immed. danger destruction of evidence or
- the threatened safety of officer or public or
- suspect likely to flee b/f a warrant can be obtained
Judged by - Police Officer’s obj. reasonable belief
Stop & Frisk - Stop
aka Terry Stop
- limited & temp. intrusionon individual’s freedom of movement
- Justified on the reasonable suspicion, based on articulable facts, that the detainees are or were involved in criminal activity
How is it determined whether reasonable suspicion exists ?
It’s based on the totality of the circumstances
- Requires more than a vague suspicion
- but less than probable cause
- Doesn’t need to be based on police officer’s personal knowledge
When can a reasonable suspicion that crime is about to or has just occured be established ?
- Informants tip coupled with police investigation tht corroborates the accuracy of the predictions
- Police Observation & Eyewitness reports
- Running from police in high crime neighborhood
- Police bulletin
What is the effect of a tip that provides nothing more than existing information?
The tip doesn’t est. even reas. suspicion
Stop & Frisk - Frisk
An officer who doesn’t have PC to arrest may make a limited search of the person if he:
- has reas. suspicion that the suspect was or is involved in criminal activity AND
- such as a pat down of outer clothing
- That the frisk is nec for the preservation of his safety or safety of others b/c reas. susp. that suspect is armed & dangerous
What is the scope of a Terry Frisk ?
The exterior of the clothing to determine if there is a weapon
What may an officer do it, in a Terry Frisk, the officer feels something he immed. knows is a weapon or contraband ?
The plain touch doctrine applies - Officer can seize such contraband w/out a warrant
Plain Feel Exception
If an officer conducting a valid frisk feels an object that has phys. char. that make its identity immediately obvious (PC of contraband)
- Officer may seize the evidence
What may an officer do if, in a Terry Frisk, the officer feels something he immediately knows is not a weapon but upon manipulation, feels may be contraband?
The manip. exceeds the scope of the Terry Frisk & the seizure is unreasonable
Automobile Exception
If police have prob. cause to believe that it comtains contraband or evidence of crim. activity - don’t need war. to search car
- can search anywhere in car they have PC to believe has contraband
- Search can extend to passengers belongings & Mobile Home
Terry Stop of car
Pursuant to lawful stop of vehicle, police may conduct a search of the passenger compartment for weapons if:
- Police possess reas. belief that the suspect is dangerous & may gain immed. control of the weapon, AND
- The search of the passenger compartment is limited to those areas a weapon may be placed or hidden
- Police can order occupants out of car they lawfully stopped
Pretextual Stop
Police can use pretextual stop to investigate if a law has been violated, even if no reas. susp.
- If they have PC to believe that the law for which the car was stopped has been violated
- e.g. seizure of drugs const. even though cops stopped car for traffic violation as pretext to investigate hunch occupants poss. drugs
Automobile Exception - Containers within the car
PC to search a car extends to containers & compartments that reas. could hold the evidence
- BUT if police have PC to search only containers, they can only search that container NOT the entire car
Automobile Exception - Trunk
If police have PC to search the trunk, not just containersin the trunk
- They can search the entire trunk & every container in the trunk, even if locked
Plain View Doctrine - Items in Public View
Can be seized w/out warrant b/c one can’t have reas. expectation of privacy in things that are exposed to the public
Plain View Doctrine - In Private View
Where there is a reas. expectation of privacy
- Officer can seize an item in plain view of the officer even if not named in the search warrant or the discovery was not inadvertant, as long as:
- The officer is on the prem. for a lawful purp. AND
- The incriminating char. of the item is immed. apparent
When does the Plain View Doctrine NOT apply
if the officer is not legitimately on the premises
What are 2 circ. where the Terry Frisk is extended beyond a person?
- In auto., where police have reas. suspicion a pers. stopped will have immed. access to a weapon AND
- In cursory sweep of interior of a home, when cops enter home to serve warrant based on reas. susp. that there are others who might be present & dangerout to the cops
When is no warrant required to seize property ?
When the prop. is in the officer’s plain view
Contraband not named in a warrant may be lawfully seized pursuant to the plain view doctrine, so long as what?
The contraband comes into view within the scope of the warrant
A search warrant for a premises carries with it what right against the occupants ?
The right to detain occupants during the search but not the right to search them
Consent Searches
Consent can eliminate the need for police to have PC as well as to first obtain a warrant in order to conduct a search
- Suspect must give vol. & intelligent consent to the search
- Intelligent - Knowledge of right to refuse consent to search is 1 factor to be taken into account but its not req.
Voluntary Consent
No threats of harm, compulsion, or false assertion of lawful auth.
- Courts evaluate the totality of the circ. in determining whether a person’s response is consent
Third-Party Consent
- Can consent to search of property owned by the 3d party
- Can consent to D prop. only if there is an agency relationship OR
- Police reas. believe the party consenting had the auth. to do so
- BUT landlord or hotel manager doesn’t have actual or apparent auth to allow officers to enter apartment or hotel room occupied by another
Scope of Consent Search
Limited to the scope of consent
Consent Search - Jointly Controlled Property
Where more than one person has access to & joint expectation of privacy in the place to be searched
- If only one objects - No Consent
- If only the consenting party is present - Consent
When is consent to search invalid ?
Gained by:
- Asserting a fake warrant
- Fraud
- Duress
- Unlawful police threat (threat to do something that the officer has no auth. to do)
What is the requirement on police to inform persons of ability to decline consent ?
There is none
Special Needs Searches
The state interest must be real, current, and vital problem that can be effectively addressed by the proposed search
- Primary Purpose Requirement - To protect the pub. from imm. danger
- If purp is general crime control, then the exception is inadequate
What are the requirements for a special needs search or seizure?
- Must be on a fixed formula that deprives individual officers of the discretion to select the subjects (e.g. stopping every third car)
- It must be narrowly tailored in scope to address the specific threat AND
- It must be conducted in a location & in manner that minimizes citizen anxiety
What is the validity of consent obtained after an unlawful seizure?
The consent is the fruit of the poisonous treee
What are administrative Searches ?
Agency compliance inspections whereby compliance with administrative regulations or health & safety codes are verified for a non-criminal purpose
What is a search or seizure w/out a warrant presumptively ?
Unreasonable, and gov’t bears burden of proving the search or seizure fell within an established exception to the warrant req.
What requirements must be satisfied for an officer to get a warrant authorizing a wiretap?
The warrant must:
- Be limited to a short pd. of time
- have probable cause that a specific crime has been or is about to be committed
- Name the person or persons to be wiretapped
- Describe w/ particularity the conversations that can be overheard, AND
- Include provisions for the termination of the wiretap
Standing to Object
To est. that search violated 4th amendment rights, D must:
- Show legit. expectation of privacy with regard to the search
What is the effect of a violation of the knock and announce rule?
- Police violate the 4th Amendment
- BUT violation doesn’t prompt evidence exclusion
What is reasonable suspicion ?
- Reas. Belief
- Based on articulable information (more then mere hunch)
- That suspect has or is about to engage in illegal or criminal activity
How does an officer’s improper subjective basis effect a Terry Stop?
Stop is still valid if there was an objectively reas. basis for the stop
What is a Terry Search (Frisk)? When is it justified?
A cursory protective search for weapons that create imminent danger to an officer or others in close proximity
- Justified only by reas. suspicion that the suspect is armed and dangerous
- Not auto. because police did a terry stop
