Crim Pro - 4th Amend - Searches and Seizures

Question 1

Step One - Government Conduct

Answer 1

1. publicly paid police - even off duty
2. any private individual acting at the direction of the public police (i.e police tell my roommate to search)

privately paid police do NOT constitute gov. conduct UNLESS they are deputized with power to arrest.
ex. security guards, campus, subdivision police

Question 2

Step Two - Reasonable Expectation of Privacy (Standing) - Automatic categories

Answer 2

1. if you OWN the premises
2. if you LIVE on the premises
3. OVERNIGHT GUESTS

(each can automatically object to legality of search)

Question 3

Step Two - Reasonable Expectation of Privacy (Standing) - Sometimes categories

Answer 3

If you OWN the property seized, you have standing ONLY IF you have a reasonable expectation of privacy in the “item or area searched.”

ex. homer puts phone in marges purse. (fact dependent) but no reasonable expectation

Question 4

Step Two - Reasonable Expectation of Privacy (Standing) - NO standing categories

Answer 4

You have no expectation of privacy, and therefore no standing for anything that you hold-out to the public everyday.
NEVER in the following:
1. sound of my voice
2. style of handwriting
3. paint on my car
4. account records held by bank
5. monitoring location of my car on a public street or driveway (cops can follow, but cannot place GPS)
6. anything seen on open fields
7. anything seen from flying over public air space
8. odors from car or luggage
9. garbage set OUT on the CURB for collection

Question 5

Step Three - Did police have a valid search warrant?

Answer 5

Facially valid search warrant requires: probable cause and particularity. 2 P’s

prob cause = “fair probability” that contraband of crime will be found
Particularity = Warrant must state with particularity the “place to be searched” and the “things to be seized”

Question 6

Step Three - Did police have a valid search warrant? Warrants and Informants

Answer 6

If affidavit or probable cause is based on informant information, the sufficient is determined by “TOTALITY of circumstances”
- look to informant’s credibility and basis of knowledge

Anonymous tip is ok, if warrant only based “in part” on information (not solely)

Question 7

Step Three - Did police have a valid search warrant? No Knock - exigency

Answer 7

An officer need not knock and announce if doing so would be “dangerous, futile, or inhibit the investigation. (destruction of evidence)

Question 8

Step Four: If warrant is NOT valid, does officer’s good faith save defective warrant? GR

Answer 8

GR - an officer’s good faith reliance on a search warrant overcomes defects with probable cause or particularity requirements.

Question 9

Step Four: If warrant is NOT valid, does officer’s good faith save defective warrant? Exceptions to GR

Answer 9

1. If affidavit is SO lacking in probable cause that no reasonable officer would have relied on it
2. The affidavit is SO lacking in particularity…
3. Officer lied or misled magistrate when seeking warrant
4. if magistrate is biased and has wholly abandoned his neutrality

Question 10

Step Five: (only when warrant invalid and cant be saved, or if police never had warrant) Exceptions to Warrant Requirement - Search Incident to Arrest (incl. autos)

Answer 10

Arrest must be lawful.

Arrest and search must be contemporaneous in time and place.

Can only search the person and areas within person’s wingspan.

Police may search interior (no trunk) of auto incident to arrest ONLY IF:
a. arrestee is unsecured and still may gain access to interior
OR
b. police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

NOTE: most states recognize community caretaker (aka emergency aid) exception - justifies warrantless search if there’s an emergency that threatens the health or safety of an individual or the public

also no search digital info on cell phone

Question 11

Step Five: (only when warrant invalid and cant be saved, or if police never had warrant) Exceptions to Warrant Requirement - Automobile Exception

Answer 11

Probable cause allows police to freely search for things or people in automobile.

ONLY when police have probable cause, can they then search the entire car (including trunk), including packages if they could reasonably contain item they had probable cause to look for. (doesn’t matter if passenger’s or driver’s)

The probable cause may arise after the car is stopped, but the probable cause MUST arise before anything or anyone is searched. (plain view not a search)

Question 12

Step Five: (only when warrant invalid and cant be saved, or if police never had warrant) Exceptions to Warrant Requirement: Plain View

Answer 12

(2 key phrases)

1. Legitimately present
2. Immediately apparent

(officer legitimately present at location where viewed item, and it must be immediately apparent that item is contraband or fruit of crime)

Question 13

Step Five: (only when warrant invalid and cant be saved, or if police never had warrant) Exceptions to Warrant Requirement: Consent

Answer 13

Consent must be voluntary. (no consent if police say they have warrant)

Third Party Consent - Where two or more people have an equal right to use a piece of property either can consent to its warrantless search. However, if both are present, and one denies consent, then denying consentor controls.
- note if denier is removed for unrelated reason (i.e lawful arrest), police may search upon other’s consent)

Question 14

Step Five: (only when warrant invalid and cant be saved, or if police never had warrant) Exceptions to Warrant Requirement - Stop and Frisk

Answer 14

Terry stop - investigating suspicion conduct, requires reasonable suspicion.

Terry frisk is a pat-down of the outer clothing and body to check for weapons, can only be done if reasonable belief that suspect is armed and dangerous.
Also, if officer reasonable believes by “plain feel” that something is a weapon or contraband, it is admissible. (cannot manipulate)

Auto stops (terry) - If reasonable belief that driver or passenger may be armed and dangerous, officer may conduct a frisk of suspected person, and may seachvehicle, only where weapon could be placed.

NOTE: if probable cause arises during investigatory stop, detention can become an arrest, and officer could use search incident to arrest rules (more full search)

Question 15

Step Five: (only when warrant invalid and cant be saved, or if police never had warrant) Exceptions to Warrant Requirement - Evanescent evidence, hot pursuit, special needs

Answer 15

Evanescent - evidence that might disappear quickly if officer took time to get warrant. (i.e scrape fingernail)

Hot pursuit - police 15 min behind. if in hot pursuit, police can enter anyone’s home w/o warrant. plain view evid admissible.

Inventory searches - before incarceration, police may inventory (search) arrestee’s personal belongings and entire vehicle

Question 16

Step Five: (only when warrant invalid and cant be saved, or if police never had warrant) Exceptions to Warrant Requirement - Public School searches

Answer 16

Any children engaged in extra curricular activities (including chess club) can be randomly drug tested

Warrantless searches of public school children’s affects (purses backpacks) is permissible to investigate violations of school rules.

A school search will be reasonable if it offers a (1) moderate chance of finding evidence or wrongdoing (2) measures of search are reasonably related to objectives, (3) search is NOT excessively intrusive