Compliance with the 4th Amendment

Question 1

What are the steps in determining whether a search or seizure pursuant to a search warrant complies with the 4th Amendment?

Answer 1

Was the warrant** **issued by a neutral and detached magistrate?

Is the warrant supported by probable cause and particularity?

• if not, did the police officers rely on a defective warrant in good faith?

Was the warrant properly executed by the police?

Question 2

When does a magistrate cease to be sufficiently neutral and detached?

Answer 2

When her conduct demonstrates bias in favor of the prosecution

Question 3

What does probable cause when issuing a warrant entail?

Answer 3

Proof of a fair probability** that **contraband** or **evidence** of a **crime will be found in the area searched

• Hearsay admissible
• Anonymous informant’s tips allowed only if there is sufficient corroboration by the police of the tipster’s information to allow the magistrate to make a common sense practical determination that probable cause exists based on a totality of the circumstances
• probable cause must be based on an affidavit

Question 4

What does the particularity requirement entail?

Answer 4

The search warrant must specify:

• the place to be searched; and
• the items to be seized

NOTE: a valid warrant authorizes** police to **detain** occupants of the premises, but does **NOT authorize the police to search persons found on the premises not named in the warrant

• unless one of the non-warrant exceptions exists

Question 5

What are the requirements for a valid wiretap warrant?

Answer 5

Warrant must name suspected persons whose conversations are to be overheard

Wiretap must be for a strictly limited time period

Must be probable cause** that a **specific crime has been committed

Warrant must describe with particularity** the **conversations** that can be **overheard

Question 6

May you eavesdrop on an individual?

Answer 6

Yes, if you speak to someone who has agreed to some form of electronic monitoring, no 4th Amendment right

Question 7

What are the exceptions that preclude an officer’s good faith reliance on a defective warrant?

Answer 7

The affidavit** supporting the warrant application is so **egregiously lacking in probable cause that no reasonable officer would have relied on it

The warrant** is **so facially deficient in particularity** that **officers could not reasonably** presume it to **be valid

The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding

The magistrate** who issued the warrant is **biased in favor of the proseuction

Question 8

When has an officer properly executed a warrant?

Answer 8

Officers executing the warrant must comply with its terms and limitations

• authorized to search only those areas and items authorized by the language of the warrant

Must execute** the warrant **without unreasonable delay

Officers must comply with the knock and announce rule

• police must “knock and announce” their presence and their purpose; and
• wait for a reasonable time before
• forcibly entering the place to be searched
• EXCEPTION**: unless the officer **reasonably believes that doing so would be:

1. futile;
2. dangerous; or
3. would inhibit the investigation

Question 9

In what situations is a warrantless search permissible?

Answer 9

“ESCAPIST”

Exigent circumstances

Search incident to arrest

Consent

Automobile

Plain view

Inventory

Special needs

Terry “Stop and Frisk”

Question 10

When does the exigent circumstances exception apply?

Answer 10

Evanescent evidence

• evidence that would dissipate or disappear in the time it would take to get a warrant

Hot pursuit of a fleeing felon

• allows police to enter a suspect’s home or that of a third party to search for a fleeing felon
• any evidence of a crime discovered in plain view while searching for the suspect is admissible

Emergency aid

• there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury

Question 11

When does the search incident to arrest exception apply?

Answer 11

Arrest must be lawful

Search must be justified on

• officer safety; or
• the need to preserve evidence

Search must be contemporaneous in time and place with the arrest

Scope includes the wingspan of the arrestee

• body
• clothing
• containers within the arrestee’s immediate control

Without regard to the offense for which the arrest was made

NOTE: automobiles** searched **incident to arrest

• interior cabin, including closed containers
• NOT the trunk
• once an officer has secured an arrestee (handcuffing and placing in squad car), officer can search the arrestee’s vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made

Question 12

When does the consent exception apply?

Answer 12

Consent must be:

• voluntary; and
• intelligent
• NOTE: officers do not need to tell someone that has right to refuse consent

Scope–all areas for which a reasonable officer would believe permission to search was granted

Apparent authority–consent is still valid from one who lacked actual authority IF the officer reasonably believed that the consenting party had actual authority

• parent likely has valid apparent authority to consent to child’s room (except where obvious that does not, e.g., always locked)

Shared premises:

• when adults share a residence, any resident can consent to a search of common areas within it
• if co-tenants disagree regarding consent to search common areas, the objecting party prevails, as to the areas over which they share dominion and control

Question 13

When does the automobile exception apply?

Answer 13

Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle

Scope:

• may search the entire vehicle and
• may open any package, luggage, or other container that may reasonably contain the items for which there was probable cause

NOTE: traffic stops

• for a search to be lawful, officer does not need probable cause at the time the vehicle is pulled over, but rather
• at some point before intiating the search

NOTE: based on vehicle’s ready mobility** and individuals’ **lesser expectation of privacy in vehicles

Question 14

When does the plain view exception apply?

Answer 14

Lawful access to the place** from which the **item can be plainly seen

Lawful access to the item; and

Criminality** of the item must be **immediately apparent

NOTE: combines often with hot pursuit

Question 15

When does the inventory exception apply?

Answer 15

Regulations** governing the **inventory searches are reasonable in scope

The search** itself **complies with the regulations; and

The search** is conducted in **good faith

• motivated solely by the need to safeguard the owner’s possessions and/or to ensure officer safety
• entirely subjective

NOTE: most common regarding

• arrestees’ bookings into jail
• vehicles** being **impounded

Question 16

When does the special needs exception apply?

Answer 16

Special needs of law enforcement, government employers, and school officials beyond a general interest in law enforcement

Drug testing of:

• railroad employees following an impact accident;
• customs agents responsible for drug interdiction; and
• public schoolchildren who participate in any extracurricular activity

Parolees as a condition of parole

Schoolchildren**–searches of the person and the “effects” of public schoolchildren to **investigate violations of school rules, provided:

• search is reasonable at its inception; and
• is not excessively instrusive in light of 1) the age and sex of the student; and 2) nature of the infraction

Border searches** regarding **routine searches of persons and effects

Airline passengers

Non-law-enforcement primary purpose test

• exception not applicable to law enforcement programs or practices whose primary purpose is to gather criminal evidence for general use by law enforcement

Question 17

What is a Terry stop?

Answer 17

A brief detention or seizure** for the **purpose of investigating suspicious conduct

• Reasonable suspicion–specific and articulable facts that inform an officer’s belief that criminal activity is present
• objective determination
• informant’s tips can satisfy this standard provided corroboration by the police of predictive detail/ reliability of the tip

You are seized when based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer questions

• whether an officer brandishes a weapon;
• the officer’s tone and demeanor; and
• whether the individual was told she had the right to refuse consent

Police pursuit and seizure–seized only if

• she submits to the officer’s authority by stopping or
• if the officer physically restrains her

Traffic Stops

• both driver and passengers are seized, such that either can challenge legality
• officer may in her discretion order both the driver and passengers out of the car
• dog sniffs are permissible provided does not prolong the stop unreasonably

Question 18

What is a Terry frisk?

Answer 18

It is a patdown** of the **body and outer clothing** for weapons that is **justified by an officer’s belief** that a suspect is **armed and dangerous

• Reasonable suspicion–specific and articulable facts that suggest that a suspect is armed and dangerous
• objective determination
• informant’s tips can satisfy this standard provided corroboration by the police of predictive detail/ reliability of the tip

Scope:

• If an officer finds something she reasonably believes is a weapon, it can be seized
• If an officer finds something she recognizes as contraband without manipulating the object, can seize it as well

Car frisks:

• when conducting a traffic stop, if an officer believes that a suspect is dangerous, may search the passenger cabin of the suspect’s vehicle
• limited to those areas in which a weapon may be placed or hidden

Protective sweeps

• When making an in-home arrest, may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety
• authority without probable cause or reasonable suspicion to look in areas adjoining the place of arrest from which an attack could be immediately launched
• to more remote areas, the officers must have additional facts sufficient to allow a reasonably prudent officer to conclude that an individual who may threaten officer safety is present in the area swept