Arrest; Search and Seizures Flashcards
4th Amendment Search & Seizure
The 4th Amendment requires searches to be reasonable, and generally a search of a home is reasonable only if the police have a search warrant for the home. The police may not execute an arrest warrant in a third party’s home without a search warrant or exigent circumstances.
4th Amendment Search & Seizure
To be able to assert a 4th Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized.
The police generally may look into any area, even an area within the home or curtilage, by means of flyover, so long as they do so from a place the public has access to; however, the police may not use technological enhancements that are not available to the public, [that would enable them to see what could not have been observed with the naked eye]. (Kyllo)
To suppress the evidence, the defendant himself must have an expectation of privacy in the place searched, it must be his own.
4th Amendment Search & Seizure
As a general matter, to conduct a constitutionally valid search, the police must have a search warrant based on probable cause unless the case falls under one of the exceptions to the warrant requirement.
Probable Cause
Probable cause to search is defined as a reasonable grounds for believing that a particular item of seizure is located at a particular place.
Exception to warrant requirement: Search Incident to a Warrant
After arresting a person who was recently in an automobile, the police may search the passenger compartment of the automobile if they reasonably believe that evidence of the offense for which the person was arrested may be found in the automobile.
The police may not search an automobile’s passenger compartment incident to ANY arrest of an occupant. Such a warrantless search is valid only if:
(i) the arestee is unsecured and still may gain access to the interior of the automobile - for safety of police officer; or
(ii) the police reasonably believe (not probable cause) that the automobile contains evidence of the crime for which the occupant was arrested.
Exceptions to warrant requirement: Automobile Exception
If the police have probable cause to believe that an automobile contains contraband or evidence of a crime, they may search whatever area of the car that may contain the object of their search without having to get a warrant.
“Plain View” Doctrine
The plain view exception to the warrant requirement applies only if the item is in plain view from a place the police are lawfully allowed to be.
Stop & Frisk
A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. (Terry v. Ohio). In such circumstances, if the officer reasonably believes that the person may be armed and dangerous, she may conduct a protective frisk.
The scope of the frisk is limited to a patdown of the outer clothing for concealed instruments of assault, but the officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel”, is a weapon or contraband.
A frisk for weapons allows an officer to seize contraband is she immediately recognizes it as such based on the patdown only (without any further conduct).
