Arrests, Searches & Seizures

Question 2

What are 4 key questions you should ask when approaching a 4th Amendment question?

Answer 2

Was there a search or seizure? Was the search or seizure conducted by a government actor? Was there probable cause? Was there a valid warrant?

Question 3

When will actions by a private individual trigger the 4th Amendment?

Answer 3

If the individual acted at the direction of a government agent or pursuant to an official policy.

Question 4

What constitutes a seizure under the 4th Amendment?

Answer 4

When an officer, by show of physical force or authority, intentionally restrains the liberty of the citizen so that they are not free to leave (objective standard). In this context, a seizure is also called an arrest.

Question 5

What factors help determine if a seizure has occurred?

Answer 5

If a reasonable person in D’s position would have believed he was not free to leave, it’s a seizure. Factors include: Threatening presence of several officers; Display of weapons; Physical touching of person; Indication that compliance with request is an order.

Question 6

What is required for a valid arrest?

Answer 6

Probable cause; and Warrant if: Suspect is in their own home or another’s home absent consent or exigent circumstances.

Question 7

When is an arrest warrant NOT required?

Answer 7

If: Arrest is in a public place; Arrest is for a misdemeanor punishable by a fine and police witnessed the misdemeanor; Exigent circumstances exist; or Police had consent to enter D’s home or third party’s home.

Question 8

Does an illegal arrest prevent the government from prosecuting D?

Answer 8

No, as long as police have probable cause, they may prosecute and detain D even if the arrest was illegal. However, evidence seized during an illegal arrest may be suppressed at trial.

Question 9

When can the police stop an automobile?

Answer 9

Must have reasonable suspicion of illegal activity, unless the stop is at a checkpoint.

Question 10

When can a private citizen make an arrest (citizen’s arrest)?

Answer 10

If: A felony has been committed; and Citizen has reasonable belief that the person being arrested committed it. Can be used as a defense if citizen used reasonable force to detain until police arrived.

Question 11

What is the two-prong test identified in Katz to determine whether or not there was a search?

Answer 11

Did the defendant have a reasonable expectation of privacy?; and Was the expectation one that society recognizes as reasonable? If yes, the search is protected by the 4th Amendment.

Question 12

When does a reasonable expectation of privacy exist under the 4th Amendment?

Answer 12

When: An individual has a subjective expectation of privacy in the thing searched; and Expectation is one society recognizes as reasonable. Viewed in totality of the circumstances.

Question 13

List examples of when there is no reasonable expectation of privacy.

Answer 13

Objects knowingly exposed to the public; Smells emanating from personal belongings; Car VIN #’s; Handwriting samples; Voice exemplars; DNA samples; Bank records; Phone call records; Conversations with government informants; Open fields; Airspace above property higher than 400 feet; Naked-eye observations of private property; and Discarded property.

Question 14

What is considered one’s home for the purposes of the 4th Amendment?

Answer 14

Home/dwelling itself; and Curtilage (area surrounding the home). Whether or not area is curtilage depends on: Proximity of the area to the home; Whether the area is within an enclosure surrounding the home; The nature and uses to which the area is put; and Steps taken by the resident to protect the area from observation by passersby.

Question 15

Are open fields surrounding the home considered curtilage?

Answer 15

No, even if the area is fenced and has ‘No Trespassing’ signs.

Question 16

Does an overnight guest in someone’s home have a reasonable expectation of privacy?

Answer 16

Yes, as long as the premises aren’t being used for an illegal purpose.

Question 17

Does an overnight guest in a hotel have a reasonable expectation of privacy?

Answer 17

Yes. A hotel clerk cannot consent to the search.

Question 18

What is the Third Party Doctrine and its effect?

Answer 18

An individual who freely shares information with a third-party (e.g. banks, phone companies, or internet service providers) has no reasonable expectation of privacy for that information. Exception: Cell Phone Tracking Data (Carpenter v. United States).

Question 19

Does aerial surveillance of D’s property with a plane or helicopter constitute a search?

Answer 19

If the surveillance is at a height greater than 400 feet, D likely has no reasonable expectation of privacy and thus no search occurred.

Question 20

Does placing a tracker on D’s vehicle or other private property constitute a search?

Answer 20

Yes, if police physically intruded on D’s property to install the tracker.

Question 21

Does using animals (e.g. drug-sniffing dogs) to search for contraband constitute a search?

Answer 21

Yes, if it intrudes upon a constitutionally protected area (i.e. home, curtilage, person).

Question 22

What are the requirements for a valid warrant?

Answer 22

Warrant must be: Based on probable cause; Supported by oath or affidavit; Describe with particularity the thing/person to be seized and place to be searched; and Be issued by a neutral and detached magistrate.

Question 23

The scope of a warrant is limited to:

Answer 23

Only the premises, person, or items described in the warrant.

Question 24

Are warrants needed for each person to be searched?

Answer 24

Yes, there must be an independent basis to search each person; just because they are in the same room doesn’t mean the search is valid (absent exigent circumstances). Note: Police can detain subjects not included in the warrant, but they cannot search them.

Question 25

What are 8 exceptions to the warrant requirement?

Answer 25

Common Acronym = ESCAPIST Exigent circumstances; Searches incident to lawful arrest; Consent; Automobile search; Plain view search; Inventory search; Special needs; Terry stop and frisk.

Question 26

When does probable cause exist?

Answer 26

If the quantity of facts and circumstances would lead a reasonable person to conclude that either: The individual in question has committed a crime; or Specific items related to criminal activity can be found at that particular location.

Question 27

Probable cause must be supported by what type of facts?

Answer 27

Facts based on either: Verifiable and reliable information from an informant; Seized evidence; or Observations by law enforcement (police are presumed to be reliable sources).

Question 28

When is an informant tip considered sufficiently reliable to establish probable cause?

Answer 28

Courts weigh: The credibility of the information; The reliability of the informant; Corroboration by the police; and An informant’s declaration against interest.

Question 29

What is the remedy if police act pursuant to an invalid warrant?

Answer 29

Evidence obtained during an unlawful search will be inadmissible pursuant to the Exclusionary Rule. Exception: Evidence is not excluded if police officers relied upon the warrant in good-faith.

Question 30

When does the good-faith exception to the Exclusionary Rule not apply?

Answer 30

If either: No reasonable officer would have relied upon the warrant; The warrant is facially defective; The officer lied or misled the magistrate to obtain the warrant; The magistrate issuing the warrant was not neutral and unattached; or The warrant was improperly executed.

Question 31

Who can execute a warrant and within what time frame?

Answer 31

Only the police may execute a warrant. Must be executed promptly while probable cause still exists.

Question 32

What is the ‘knock and announce’ rule?

Answer 32

Absent exigent circumstances, the police must knock and announce their identity before entering a home to execute a warrant.

Question 33

When are police not required to ‘knock and announce’?

Answer 33

When police have reasonable suspicion that doing so will: Endanger officers; Lead to the destruction of evidence; or Lead to flight of the suspect.

Question 34

If police violate the ‘knock and announce’ rule, what happens to evidence discovered during the search?

Answer 34

Still admissible. Exclusionary Rule does not apply.

Question 35

What is the exigent circumstances exception to the warrant requirement?

Answer 35

Police may search without a warrant if waiting to obtain a warrant will result in imminent: Destruction of evidence; Escape of the accused; or Danger to police or others in the area. Note: Not applicable if police create the exigent circumstances so they can bypass the warrant requirement.

Question 36

What are police allowed to do when in hot pursuit?

Answer 36

If the suspect is a felon, the police may: Enter and search a private dwelling; Conduct a warrantless arrest of the suspect on the premises; and Seize any contraband in plain view. Lange v. California (2021) held that a fleeing misdemeanor suspect does not automatically create an exigent circumstance.

Question 37

Can police perform warrantless blood tests on drunk drivers?

Answer 37

Yes, only under the exigent circumstances exception if: BAC evidence is dissipating (‘literally disappearing by the minute’) and; Some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.

Question 38

What is a Terry Stop (also known as a ‘stop and frisk’)?

Answer 38

A brief investigatory seizure by the police when there is reasonable suspicion of criminal activity. Note: Terry Stops are not arrests, but rather a brief detainment by the police.

Question 39

Define reasonable suspicion.

Answer 39

Reasonable belief based upon articulable information (more than a mere hunch) that the suspect has or is about to engage in illegal or criminal activity.

Question 40

What is the permissible duration of a Terry Stop?

Answer 40

Time necessary to confirm or deny the police officer’s suspicion.

Question 41

When is a police officer allowed to ‘frisk’ a suspect?

Answer 41

If they have reasonable suspicion that the suspect is armed and dangerous, the officer can conduct a limited search of the suspect.

Question 42

What is the scope of a ‘frisk’?

Answer 42

Police are only allowed to do a quick pat-down of the suspect’s outer clothing for weapons. Cannot manipulate items.

Question 43

What is the ‘plain feel’ exception to a Terry Stop?

Answer 43

If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon.

Question 44

What is the ‘Plain-view’ doctrine?

Answer 44

A warrant is not required to seize an item if: The police are on the premises lawfully when they observe the item; and The incriminating nature of the item is immediately apparent.

Question 45

Do smells fall under the ‘Plain-view’ doctrine?

Answer 45

Yes, if police have probable cause to believe the smell is from contraband, they can search the item where the odor is coming from.

Question 46

What is a search incident to lawful arrest (SILA)?

Answer 46

Warrantless search of an arrestee and the area within their immediate control (wingspan, lunging area) during a lawful arrest.

Question 47

If police have a reasonable suspicion that accomplices may be in the home, what actions can they take?

Answer 47

The police can conduct a cursory protective sweep of spaces where people may hide (closets, under the bed, etc).

Question 48

What is the duration of a search incident to lawful arrest?

Answer 48

Contemporaneous with or immediately after the arrest.

Question 49

Pursuant to a search incident to lawful arrest, can police search pockets and containers?

Answer 49

Yes, as long as they are within the suspect’s reach and large enough to hold contraband or weapons.

Question 50

Pursuant to a search incident to lawful arrest, can police search the arrestee’s vehicle?

Answer 50

Yes, if: Arrestee has access to the vehicle compartments; There is a reasonable belief arrestee may destroy evidence or pose a danger to the officers; and There is reasonable belief that the vehicle contains evidence of a crime.

Question 51

What is an inventory search?

Answer 51

Constitutional, warrantless search of an arrestee’s belongings once they are jailed.

Question 52

What is the automobile exception to the warrant requirement?

Answer 52

Police may search an automobile and persons within it without a warrant as long as they have probable cause.

Question 53

Does the automobile exception apply to vehicles incapable of movement?

Answer 53

No, because the danger of the evidence being removed is significantly diminished.

Question 54

Which types of checkpoints are permissible?

Answer 54

Sobriety checkpoints; Checkpoints at or near the border; and Checkpoints to obtain information about a recent crime.

Question 55

If a checkpoint is to obtain information about a crime, what requirements must it follow?

Answer 55

Checkpoint’s primary purpose is help law enforcement investigate a crime and advance a public concern; The cars are stopped in a neutral manner; and Checkpoint minimally interferes with 4th Amendment rights.

Question 56

Are border searches allowed?

Answer 56

Yes, officials may search anyone at or near the border (including international airports and ports) in a routine manner without a warrant, or probable cause, or reasonable suspicion.

Question 57

What is the consent exception to the warrant requirement?

Answer 57

If a person voluntarily consents to a search, no warrant or probable cause is needed.

Question 58

What constitutes invalid consent for a warrantless search?

Answer 58

Consent that was gained by: Asserting a fake warrant; or An unlawful police threat.

Question 59

Are the police required to inform someone of their ability to refuse consent?

Answer 59

No.

Question 60

If a person has consented to a search, who determines the scope of the search?

Answer 60

The person who consented to the search. Exceeding the scope will make the entire search invalid.

Question 61

Who has authority to consent to a search?

Answer 61

Any person who has joint control or use of shared premises (e.g. roommate, spouse).

Question 62

Does a third party have authority to consent to a search?

Answer 62

Yes, if: The third party owns or occupies the home; or The third party and D jointly own or occupy the home and D is not present.

Question 63

Can a landlord give consent to search a tenant’s residence?

Answer 63

No.

Question 64

Can an employer give consent to search an employee’s private storage area?

Answer 64

No

Question 65

Define administrative search

Answer 65

Search carried out by regulatory bodies to enforce compliance with administrative regulations and/or health and safety codes

Question 66

When is an administrative warrant required for an administrative search?

Answer 66

Generally required for administrative fire, health, or safety inspections of residential or private commercial property.

Question 67

What is needed for an administrative warrant to be issued?

Answer 67

Either: 1. Probable cause that an administrative violation has occurred; or 2. Evidence that establishment has been selected to be inspected ## Footnote Probable cause standard is less stringent than for criminal investigations

Question 68

Can the police open international mail?

Answer 68

Yes, as long as the police have probable cause to do so

Question 69

Is criminal evidence found during an administrative search admissible?

Answer 69

Yes, as long as the search was executed pursuant to a warrant, or the search was a valid, warrantless search

Question 70

When are searches of public school students allowed?

Answer 70

1. Police have a moderate chance of finding contraband (lower bar than probable cause); 2. Search methods are reasonably related to the purpose of the search; and 3. Search is not excessively intrusive

Question 71

Define Exclusionary Rule

Answer 71

Holds that evidence obtained in violation of D’s 4th, 5th, or 6th Amendment rights is inadmissible at criminal trials to prove D’s guilt

Question 72

The exclusionary rule does not apply to which type of proceedings?

Answer 72

• Grand jury proceedings; • Civil proceedings; • Administrative proceedings; and • Sentencing, bail, and parole hearings

Question 73

What are the exceptions to the Exclusionary Rule?

Answer 73

Evidence may still be admissible if it falls underneath these exceptions: 1. Independent source: Evidence is discovered by an independent source; 2. Attenuation: Relationship between the primary taint and discovery of evidence is sufficiently attenuated as to break the causal chain; 3. Inevitable discovery: Evidence would have been inevitably discovered through legal means; 4. Good faith: Exists when police officers were acting in good faith on a warrant that was later declared invalid; 5. Impeachment: Illegally obtained evidence may be used to impeach D at trial

Question 74

Define Fruit of the Poisonous Tree doctrine

Answer 74

Holds that any evidence obtained from an illegal search is tainted and thus subject to the exclusionary rule unless an exception applies.

Question 75

Is physical evidence seized as the result of an illegal confession admissible?

Answer 75

Yes, physical evidence obtained from a confession that violated Miranda is still admissible at trial. ## Footnote Ex. During an illegal interrogation, D tells police that a gun is hidden under the bed. The gun is still admissible at trial.

Question 76

What are wiretaps?

Answer 76

Monitoring of electronic communications; require a warrant (except for certain national security purposes)

Question 77

What are the warrant requirements for a wiretap?

Answer 77

The warrant must: 1. Demonstrate probable cause; 2. Name the person going to be wiretapped; 3. Contain specific details about the conversations that will be overheard; 4. Explain how the wiretap will be terminated; and 5. Be limited to a brief period of time