Crim Pro 4th Amendment Flashcards
1
Q
What is the 4th amednment?
A
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures by the government without a valid warrant that is supported by a probable cause +oath or affirmation + issued by a neutral judicial officer. Describing “ particularly” the place to be searched, and the persons or things to be seized.
2
Q
Searches defined
A
A search is an invasion of a protected privacy interest.
3
Q
The Supreme Court has set out a two-pronged test to determine whether a privacy interest exists
A
1) First, there must be an expectation of privacy that society is prepared to regard as reasonable. This prong refers to objective reasonableness, and
2) Second, there must be a subjective expectation of privacy on the part of the individual.
4
Q
Example of a reasonable expectation of privacy #1
A
A retreats into a closed telephone booth and speaks in a quiet voice to B. A believes his conversation will remain private, and society regards this expectation as reasonable. Therefore electronic interception of A’s conversation constitutes a search.
5
Q
Example of a reasonable expectation of privacy #2
A
If A possess illegal drugs in his home, but A leaves the window shade up so that the drugs are visible from the street, then the objective privacy accorded individuals for activity in their homes would be lost because A did not take adequate steps to ensure his privacy. To put it another way, even if A had a subjective intent to keep it private, this is not an expectation society would recognize as reasonabl
6
Q
Who bears the burden of proof to establish the objective reasonableness of privacy expectation.
A
The Defendant
7
Q
What are the Protected Areas that requires a warrant to be searched? (3)
A
1) House
2) Curtilage
8
Q
What is considered a house in the context of searches?
A
“House” is broadly construed to include virtually all structures that people commonly use as residences, whether on a temporary basis, such as:
1) a hotel room or
2) on a long-term basis, such as an apartment.
Houses also include buildings connected to a residence such as a garage.
Offices, stores and other commercial buildings are included within the term
9
Q
What is considered a house in the context of Curtilage.?
A
Curtilage refers to the area surrounding a home that is associated with the privacy and sanctity of a person’s residence.
A barn is generally not considered part of the curtilage, while areas like a front porch or backyard would be included.
Factors that determine the extent of the curtilage include:
1) Proximity of the area to the home.
2) Whether the area is within the enclosure surrounding the home.
3) The nature of the area’s uses.
4) Steps taken to protect the area from observation.
10
Q
What about searching Open fields?
A
Protection does not include open fields or vacant and undeveloped land outside the curtilage.
For this reason, entry onto an open field is not covered by the Fourth Amendment, and none of its requirements (e.g., probable cause, warrant) apply
11
Q
What is “papers” in the context fo the 4th amendment?
A
“Papers” encompass personal items, such as letters, diaries, and pictures, as well as impersonal business records.
12
Q
what is “effects” in the context of the 4th amendment?
A
automobiles, luggage, other containers, clothing, weapons, and even the fruits of a crime.
13
Q
privacy is evaluated in terms of
A
reasonable expectations
14
Q
Tor F: A nonsearch is not
regulated by the Fourth Amendment (only searches trigger 4th amednment ); it may be done for no reason or any reason at all.
A
True.
15
Q
What are some police actions that do not amount to searches: (7)
A
1) Plain View
2) Beepers and other enhanced technology
3) Aerial surveillance
4) Canine sniffs
5) Conversations
6) Garbage
7) Pen registers
16
Q
What is plain view?
A
is a legal concept that allows law enforcement officers to seize evidence without a warrant if the evidence is plainly visible from a lawful vantage point.
Plain view doctrine: According to the plain view doctrine, if a law enforcement officer is lawfully present in a location and sees an object or evidence that is immediately recognizable as contraband, illegal activity, or evidence of a crime, they can seize it without a warrant.
17
Q
Three requirements: For a plain view search to be valid, three conditions must be met:
A
1) The officer must be lawfully present in the location where the evidence is observed.
2) The incriminating nature of the evidence must be immediately apparent (i.e., without further search or investigation).
3) the officer must have a lawful right of access to the evidence.
18
Q
What is the scope of plain view search?
A
Limited scope: The plain view doctrine only allows for the seizure of evidence that is in plain sight. It does not permit officers to conduct a further search or manipulate objects to find additional evidence.
19
Q
If an officer’s plain view observations lead them to believe that further evidence of a crime exists, they can use those observations as..
A
probable cause to obtain a search warrant for a more extensive search.
20
Q
How can Beepers and other enhanced technology be valid and not trigger search under the 4th amendment?
A
2
If the enhanced technology merely increases the depth of information not otherwise protected by an expectation of privacy, the government’s use of enhanced technology to see or hear better is not a search.
However, Law enforcement’s use of sense-enhancing technology to see details of a private home that would not be discoverable without physically entering the home constitutes a Fourth Amendment search.
e.g.:
The use of a hidden beeper to track a barrel of chloroform (used to manufacture speed) was not an invasion of privacy where the information gleaned consisted of movements over public highways. However, if the monitoring continued after the barrel was taken inside a house and was no longer visible from outside, then a beeper locating the barrel within the structure constitutes an invasion of privacy
Training a thermal imaging device that reveals heat patterns within the home (indicative of marijuana grow lights), constitutes a search.
21
Q
Aerial surveillance valid search that does not trigger search within 4th amendmen?
A
Aerial surveillance, such as the use of airplanes, helicopters, drones, or satellite imagery, can be a valid form of search under the Fourth Amendment in certain circumstances.
1) Activities conducted in open spaces visible from the air, such as open fields or public streets, may not trigger Fourth Amendment protections.
2) law enforcement has a right to fly over navigable airspace, which includes the airspace above private property, without violating the Fourth Amendment. Therefore, if aerial surveillance occurs within the legally permissible airspace, it may not require a warrant.
3) Navigable airspace for fixed-wing aircraft is above 1,000 feet;
and there is no minimum level for helicopters.
Note: So far, all aerial surveillance has been
approved
22
Q
Do Canine sniffs amount to unconstitutional search?
A
Exposure of luggage, located in a public place or another place where the drug detection dog is authorized to be, to a “canine sniff” does not amount to a search because a “canine sniff” by a well-trained dog is 1) less intrusive than opening the luggage, and 2) the information obtained is limited to presence or absence of narcotics.
23
Q
Do people have a reasonable expectations of privacy when it comes to conversations?
A
An individual is held to assume the risk that anything said to another, or in their presence, may be revealed, recorded, or transmitted by their auditor.
Any person may be surveilled in this way outside the Fourth Amendment.
Thus, an informer, even one planted by the government, may reveal what she has heard the defendant say. She may also wear a wire or transmitter to record the conversation or broadcast it to another officer. No warrant or probable cause is required. If they are properly authenticated, tapes and listener testimony may be offered by the prosecution.
24
Q
What is the limitations to conversations searches?
A
It requires that one of the participants consents to reveal the contents of the conversation.
Electronic surveillance may not be used against persons who would otherwise have an expectation of privacy in their conversations without the consent of one of the participants.
Unless someone was loud in a public place (no reasons for privacy expectations) AKA: eavesdropping.
25
Can police search Garbage without a warrant?
There is no Fourth Amendment search where the defendant exposes garbage in the public street for mixing with other trash before being carted away.
There is no objective expectation of privacy in garbage because garbage left on street is readily accessible to animals, children, scavengers and snoops, and curb-side garbage is left to be conveyed by a third party.
26
Is there any reasonable expectations of privacy to Pen registers?
Pen registers record the numbers dialed on a telephone by monitoring electrical impulses; they do not monitor the content of the conversations.
Law enforcement use of pen registers is not a "search" within the meaning of the Fourth Amendment. Unlike wiretaps and bugs, which permit the police to acquire the contents of communications, pen registers only reveal the number called.
The phone numbers of parties to a communication are necessarily made available to a third person, namely the telephone company, every time a call is made
27
A seizure of property is an act that invades..
invades an individual's possessory interest in
that property
28
When is Tangible property is seized in Fourth Amendment terms..
“when there is some meaningful interference with an individual’s possessory interest” in that property.
29
The general rule is that a “seizure” occurs when a police officer..
exercises control over the defendant’s property by destroying it, or by removing it
from the suspect’s actual or constructive possession.
30
A house or office and its contents are arguably “seized” when...
the police secure the premises
31
Seizure of property requires?
probable cause, the absence of which constitutes a Fourth Amendment violation.
32
A seizure of property does not occur under the following circumstances: (2)
a. Temporary possession. No seizure occurs when an officer merely picks up an object to look at it or moves it a small distance, because any interference with a suspect’s possessory interest in such circumstances is not “meaningful.” Intimate looking could constitute a search, however.
b. Beepers. The addition of a hidden beeper does not meaningfully interfere with the
possession of a beeper-free barrel of chloroform. Hiding a beeper in the item is therefore not a seizure.
33
When does D have standing to raise 4th amendment violations?
1) only when that violation invades the defendant’s own Fourth Amendment rights, as opposed to someone else’s rights.
2) When the defendant has a legitimate expectation of privacy in the place being searched.
3) When there is a state action, or when private actors acted under the assistance of state actors
34
When does a person has a legitmate expectations of privacy?
1) in her own person.
2) in her own premises, even if she is not home at the time of the search.
35
Do guests have a reasonable expectations of privacy?
1) An overnight guest, for example, always has a legitimate expectation of privacy in the residence.
2) a guest may have a legitimate expectation of privacy if he has a significant connection to the house, as shown by factors such as: (1) the length of the stay (more than a few hours); (2) previous significant connections with the resident; (3) using the house to store possessions with the owner’s permission; or (4) engaging in non-commercial activities in the home
36
When is there legitimate expectation of privacy in certain areas of a house or building?
1) A homeowner has a
legitimate expectation of privacy in the entire home.
2) A guest, only have a legitimate expectation of privacy in certain areas: she would have a legitimate expectation of privacy in the guest room where she was staying; she also has a legitimate expectation of privacy in common areas (such as a family room)
37
Is there a legitmate expectations of privacy in Cars? (OWNER)
An owner of a car has a legitimate expectation of privacy in the contents of that car, even if she temporarily loans it to another person.
If the owner gives another person complete control over the car for an extended period of time, however, courts may hold the owner no longer as a legitimate expectation of privacy.
38
Is there a legitmate expectations of privacy in Cars? (passengers/possessor)
A person in possession of a car, even if not the owner, has a legitimate expectation of privacy of the car if the owner is absent.
If the car owner is present, however, a passenger is much less likely to have a legitimate expectation of privacy in the car.
39
Traffic Stop: Search of Car versus Seizure of Person (passengers)
if a car is illegally stopped and then searched, the passenger lacks standing to contest the illegal search of the car.
However, the passenger does have standing to contest the illegal traffic stop, because her person was seized by the stopping of the car
40
Probable cause is
is a measure of the probability that a crime was committed and (for searches) that evidence of it will be found
41
Informants’ tips probable cause can be found..
The probable cause should be assessed under the "totality of the circumstances" standard, taking into account various factors.
1) Informant’s veracity/credibility. This can be established by a track record of accurate tips; some motivation to tell the truth; or corroboration of the tip.
2) Basis of knowledge. This can be established by the detail in the source of the information; corroboration, especially of non-public details of the tip can
also, help establish the informant’s basis of knowledge.
42
Victim/witness statements probable cause
May form the basis of probable cause even without a track record or corroboration of the reported information.
An individual reports to a police officer that her purse was snatched and points to the perpetrator or gives a detailed description, which the arrestee matches. This constitutes probable cause to arrest despite the absence of a track record of reliability or corroboration.
43
Observations by the police and probable cause
if they reach the threshold
of a fair probability of crime, can form the basis for probable cause
e.g. Police observe one individual hand another a small container, of the type often used to contain drugs, in exchange for cash. Probable cause exists to search or arrest for drug distribution/possession.
44
When is a warrant issued?
Warrants are issued by a judicial officer after an ex parte
review of an affidavit which is supported by oath or affirmation.
45
What if there is False information in affidavit that was used to produce a search warrant?
If the defendant makes a substantial preliminary
showing that a false statement was made in the affidavit, he is entitled to a hearing
on the issue.
46
Whats the remedy for false information in the affidavit that was used to produce a search warrant?
The remedy for such a faulty affidavit is to redact the affidavit of the erroneous facts and to conduct the probable cause determination anew
47
Is there a Prohibition against general warrants?
The Fourth Amendment text
specifies that warrants shall particularly describe the place to be searched and the persons or things to be seized.
Particularity limits the government to a search of no greater scope or intensity than is necessary to locate the items
named in the warrant
48
What is Particularity in describing persons
The name and address of the person to be arrested is sufficient particularity.
49
What is the Particularity of place to be searched/and wiretaps?
The Court has been
quite lenient in allowing law enforcement flexibility in describing the place to
be searched, and especially so for wiretaps.
50
Particularity in describing the thing to be seized.
A warrant must describe
the items to be seized with as much particularity as is reasonably possible. However, If
the item is of a generic type (e.g., lumber) a general description will do.
51
T or F: The judicial officer issuing warrants must be neutral and detached.
The Court has held that a magistrate who personally visited a bookstore to determine which materials were pornographic lost the character
of detachment.
The Supreme Court has held that a magistrate lacked neutrality where he received $5 for each warrant issued and nothing for each denied.
52
How does the court deal with magistrate errors
if an officer relies on objective
good faith on a warrant that – it is later found -- lacks probable cause, any resulting evidence will not be suppressed.
53
T or F: The Court has extended the "good faith"
exception to warrantless searches and seizures made pursuant to a statute later
declared unconstitutional.
True
54
What happens if police officers, Exceed the scope of the warrant.
Reasonable mistakes in executing the scope of the warrant do not make for an unreasonable search.
e.g. Execution of a search warrant against the wrong apartment in a multi-apartment complex does not invalidate the search unless the mistake
itself is unreasonable.
55
What if police officers Seize items not specified in the warrant?
The plain view doctrine serves
as an independent basis to seize clearly incriminating items not specified in the warrant whether or not the police had reason to know they were there
56
Plain view seizures must pass a three-prong test:
1) The officer must be lawfully present in the location where the evidence is observed.
the officer is located in a public place or has the authorization to be where he or she is at the time the evidence comes into view, e.g., warrant, consent, exigency, etc.,
2) The incriminating nature of the evidence must be immediately apparent (i.e., without further search or investigation).
3) the officer must have a lawful right of access to the evidence. (the access is consistent with his limited authorization)
e.g. : A policeman who lawfully enters a house to check out the sound of gunfire cannot move stereo equipment to record its serial numbers. While the officer was entitled to be in the house without a warrant due to the exigent circumstances created by the gunshots, moving the stereo was a separate search that must be supported by probable cause. To put it another way, the serial numbers were not in plain view.
57
What if police were searching for items not described in the warrant.
Searching for items that
could not otherwise be found while looking for the items described in the warrant is impermissible, as is searching persons not described in the warrant.
58
Can police search persons found on the premises where a warrant is executed.
No.
A search warrant to search the premises implicitly authorizes temporary detention of occupants during a search.
However, others found on the premises may be frisked for weapons if there is reasonable suspicion they are armed and dangerous, but a separate warrant is required to conduct a full-blown search of persons found on the premises.
59
If police had reasonable suspicion that some patrons or guests in the building being searched is armed, what is the process?
e.g. While executing a Warrant to search the bartender and bar for cocaine, the police may frisk or pat-down bar patrons found on the premises if there is reasonable suspicion, but they cannot conduct a full-blown evidentiary search.
However, if during the frisk or pat-down, the police detect contraband whose character is immediately apparent, the police may exceed the limits of the frisk and seize the illegal contraband under the "plain feel doctrine."
60
Whats the plain feel doctrine?
if during the frisk or pat-down, the police detect contraband whose character is immediately apparent, the police may exceed the limits of the frisk and seize the illegal contraband.
61
What is the common law knock-and-announce principle
Police must ordinarily knock on the door of a
dwelling and announce their presence before entering forcefully or not.
However, an exception is in the event that the police have reasonable suspicion of resistance or destruction of evidence by those within they do not have to know and announce. Such a case-particular exception may be contained in the warrant or may arise at the time of its execution.
62
Is a violation of the “knock and
announce” rule would result in suppression of the fruits of the resultant search?
No. , that the exclusionary rule would not apply to searches that were illegal solely because of a violation of the knock-and-announce rule.
Accordingly, the correct answer in a situation in which the police should have, but did not, knock and announce before entering a home is that the failure to knock and announce violated the 4th Amendment but the results of any search
will nevertheless not be suppressed.
63
Nightime searches?
Federal Rules of Criminal Procedure 41(c) requires that “the warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.”
64
What are Exigent circumstances?
The police may enter a protected area without a warrant to search or arrest under exigent (emergency) circumstances.
65
What is required to search under exigent circumstances?
Probable cause to search or arrest is still required.
Under the exigent-circumstances exception
to the warrant, the requirement is whether the officers have probable cause to believe that if they do not enter immediately:
a. evidence may be destroyed or removed,
b. the suspect may escape,
c. harm will occur to the police or others, either inside or outside the dwelling;
or,
d. they are in hot pursuit of a fleeing felon
66
T or F: If the police have reason to believe that an armed felon raced into a house, they may follow in pursuit without a warrant.
True.
However, The Court has disallowed the use of the exigent circumstances exception to the warrant requirement where the crime is a minor misdemeanor.
67
Are police stakeouts around or “campouts” on the premises while a warrant is being sought allowed?
Yes. It has also approved the exclusion of the occupant from the home for the same
purpose.
68
What if there was consent to search a house?
A validly obtained consent justifies an officer in conducting a search and neither probable cause (nor any other level of suspicion) nor a warrant is required.
Any evidence discovered may be seized pursuant to the plain view doctrine (discussed above).
69
Valid consent must be given..
voluntarily.
70
For consent to be voluntary, consent must be free .
from duress or coercion, express or implied
71
Factors supporting the conclusion that coercion impelled the consent include:
1) a show of force by the police, such as a display of guns, that would suggest to the person that she is not free to refuse consent,
2) evidence relating to the consenting person’s age, level of education, emotional state, or mental condition that makes it reasonable to infer that
she will be overborne by the officer’s conduct.
72
Do Police have to inform the person of the right to refuse consent?
No. Police do not have to
inform the person of the right to refuse consent.
Consent is valid even though the suspect was not aware of the right to refuse.
73
What is the Scope of a consent search?
A suspect may delimit the scope of consent and may withdraw consent.
The standard is what would a reasonable person have understood the grant of consent to search to mean. Thus, consent to search a car for drugs includes all searchable areas where drugs could possibly be located, including containers in the car.
74
What about third-party consent?
Third-party consent to common areas
75
Consent to search given by third
parties may be upheld based on either of two theories:
1) common authority over the premises: mutual use by persons having joint access or control for most purposes; or
2) a reasonable belief by the officer that there was common authority even where the third party did not in fact have authority to authorize consent
76
an express refusal of consent by one
party with joint authority over a home renders a warrantless search of the home..
unreasonable as to him regardless of whether another person with joint authority consented to the search.
77
What are "containers"
Containers are “effects” within the terms of the Fourth Amendment.
Containers include suitcases, briefcases, backpacks, purses, and any other item capable of containing another item.
78
Do people have a reasonable expectation of privacy when it comes to their containers?
An individual ordinarily has an expectation of privacy in her containers.
79
There are three ways in which a container may be searched:
1) when there is probable cause
2) Search pursuant to an incident to arrest.
3) During an Inventory/booking search.
80
If a police officer has probable cause to search a container.
e.g. A drug dog “alerts” to a suitcase on an airport baggage carousel.
With probable cause, an officer may seize a
container; however, it may not be opened, without a warrant.
Note: No warrant is required if the container is in a vehicle (below).
81
Are there any containers with no expectation of privacy?
Certain containers are so indicative of illegal contents (e.g. crack vial), that their appearance alone provides probable cause to seize them.
82
Pursuant to a valid arrest the police may search
containers...
within the area of the arrestee’s immediate control (often called the “Chimel” area). No additional basis for this search is required.
Note: special rules on search incidents to arrest in a vehicle (below).
83
During an Inventory/booking search..
A person being booked into a stationhouse or jail
custody may be searched, along with items in his possession.
84
Automobile searches, what do they require?
It is an exception to the warrant requirement if probable cause is to be found.
If the Automobile searches are based on probable cause. The automobiles and containers found therein may be searched without a warrant.
In general, the scope of automobile searches extends to wherever probable cause exists to suspect that an item subject to seizure may be found.
e.g. Police have probable cause to believe a van contains stolen TV’s. They may search areas that might hold the TVs, including the trunk, but not
the glove box or consoles.
85
T or F: The “automobile exception” is an exception to the warrant requirement, not to the need for probable cause to search an automobile
True.
86
Can police conduct searches of automobiles away from the scene?
Yes only if a warrantless search of an automobile would be valid if it were conducted at the scene,
i.e., at the place where it was stopped or first discovered, is also permitted if it
takes place away from the scene.
87
What about containers during an automobile search?
A container that might contain the object of a search within a vehicle may be opened and searched without a warrant.
This is true even if probable cause for the container existed before it was placed in the vehicle, and even if the container could not have been searched without a warrant before it was placed in the vehicle.
e.g. Police have probable cause to believe drugs are in a vehicle. They may search anywhere in the vehicle drugs may be hidden, including
the purse of a passenger
e.g. Police have probable cause to believe a particular suitcase contains contraband. They observe it being placed into the trunk of a car.
They may search the trunk, seize the suitcase, and open it without a warrant.
88
Searches incident to an arrest. There are two exceptions to the warrant requirement that may apply when a person is arrested and taken into custody while driving her car. These are:
1) Interior of the car, when within reaching distance. However, If, at the time of the search, the person arrested is no longer within reaching distance of the interior of the car, this exception does not apply.
2) For evidence relating to the crime of arrest.
When the person is arrested and the police have “reason to believe [that] evidence relevant to
the crime of arrest might be found in the vehicle,” police may search anywhere in the car for which there is reasonable suspicion the evidence
might be found.
e.g.
Police pull over a car for exceeding the speed limit. They arrest the driver when they discover she has a suspended license. Police also have reasonable suspicion, but not probable cause, to believe the driver is storing marijuana in the car.
Police may not search for the marijuana under this exception, because the marijuana would not be evidence of the crime for which the driver was arrested – driving on a suspended license.
89
T or F: There is no lawful search incident in a traffic
citation or any other form of noncustodial “arrest.”
True. however, states can pass what they consider citation traffics arrests
90
Pretext Arrests..
If authorized by law, an officer may use his or her
discretion in taking a person into custody even if the arrest is a “pretext” to perform a search incident to the arrest
91
Warrantless, suspicionless automobile inventory searches are
constitutional under the Fourth Amendment.
why:
a) to safeguard items in the car,
b) to present an accounting to rebut potential claims of theft, and
c) to confiscate any dangerous items left in the car
92
What is the Scope and discretion in impoundment and inventory searches?
The inspecting officer may exercise discretion in impounding the automobile and in conducting the search as long as that discretion is exercised according to “standardized criteria.” T
he Court has struck down inventory searches conducted without any criteria, for example, on when closed containers can be opened.
93
What are Terry searches of automobiles?
The car interior, including containers, may be searched for weapons without a warrant on the basis of reasonable suspicion that an occupant is armed and dangerous.
The plain view doctrine applies to items found in a car during a Terry search. In addition, passengers may be subjected to a Terry search if there is reasonable suspicion they are armed and dangerous.
94
T or F: The owner, driver, or one with apparent authority, may consent to a search of the car, and the scope of the consent is defined by the object being searched for.
True. Once a car is stopped, the law enforcement officer may use the opportunity to obtain consent.
Even if the stop or search was a “pretext” for criminal investigation, that motivation is irrelevant
and does not render an otherwise lawful act unlawful.
95
Administrative searches/Roadblock checks
- Special government needs searches are evaluated based on the reasonableness clause of the Fourth Amendment.
- The balancing test weighs the individual's interest in liberty against society's interest in security.
- Administrative searches are conducted for non-criminal purposes, such as public health, safety, border protection, or maintaining an educational environment.
96
A search primarily intended for criminal law enforcement does not qualify as a..
As an administrative search. However, they must apply to everyone the same.
i.e. stopping every car
97
Can homes be inspected without a warrant?
No. May be inspected for health and safety violations with a warrant issued on the basis of reasonable legislative or administrative standards
(e.g. age or type of building). Such a warrant is required.
98
Can Businesses be inspected without a warrant?
Businesses ordinarily can be searched under the same conditions as a home.
However, businesses that are licensed or ones traditionally subject to governmental regulation, do not require a warrant for administrative searches.
99
A person maintains a reasonable expectation
of privacy in his fire-damaged home, unless the
unless the fire is “so devastating”
that no reasonable privacy interest remains in the ash and ruins.
100
Do 4th amendment protections apply to prisons?
Prisons. No Fourth Amendment protections apply.
Also to prisoners, parolees, etcs..
101
Do 4th amendment protections apply to schools?
While the Fourth Amendment applies to school officials, they may search a student and her belongings on “reasonable grounds.” This is
less than probable cause and possibly less than reasonable suspicion.
102
Do 4th amendment protections apply to International checkpoints and border searches
Persons may be stopped at the international border or its functional equivalent (e.g., at an airport where an international flight arrives), and they and their effects may be searched, without a warrant and in the absence of any suspicion of wrongdoing.
103
T or F if there is reason to believe that drug traffickers swallowed balloons containing drugs does it give rise to more intrusive border searches?
Yes. If the officials have reasonable suspicion of criminal activity, the scope of a border search may exceed routine customs search,
104
Is a warrant necessary to search Probationer/Parolee without a warrant?
Yes.
105
Checkpoints searches?
Checkpoints at which vehicles are stopped on a regular basis (e.g. every car, every other car) have been upheld when designed to assure road safety (alcohol) but checkpoints stopping all drivers are unreasonable when employed for general crime
detection, such as drug law enforcement.
106
When is suspicionless urine testing valid without a warrant?
a) Transportation workers involved in accidents;
b) Law enforcement officers applying for jobs or promotions;
c) Public school students participating in competitive extracurricular activities
The Court has struck down suspicionless drug testing of candidates for public office and pregnant women for cocaine use when the results would
be used to prosecute
107
Drug testing without a warrant:
Fourth Amendment only applies where the government conducts drug testing.
Private drug testing does not involve state action. Therefore, the Fourth Amendment would not apply.
108
Electronic surveillance is a warrant required?
A warrant (order) is required for nonconsensual electronic surveillance.
To intercept wire or electronic conversations, the government must seek a warrant from a judge based upon probable cause
109
Title III covers wiretapping, interception of cell phone calls, email, and electronic or mechanical interception of oral conversations in which there is a reasonable expectation of privacy. This coverage includes private parties as well as state actors.
True. Needs warrant for all of these.
110
An exception to Title III.
Consensual monitoring.
Title III allows one party to give permission to allow a phone conversation to be overheard or recorded without a court order. The government does not need to get a warrant to have an informant wear a wire or record a consensual conversation.
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What are the sanctions for violations of Title III?
Title III has a statutory exclusionary rule that is broader than the Fourth Amendment’s, barring use in all judicial, administrative proceedings, including the grand jury. There are also civil and criminal sanctions for illegal surveillance.
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What is considered to be a seizure?
It is when a reasonable person would not feel free to leave.
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What is considered to be a seizure?
It is when a reasonable person would not feel free to leave.
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What is an Arrest?
It is the taking of a person into custody for the purpose of charging.
Probable cause is required.
PC to believe that a crime has been committed and the suspect committed it is required for an arrest
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Arrest warrant needed?
1) Houses
2) Public places
1) Houses. The Court has held that the Fourth Amendment prohibits warrantless, nonconsensual entry into a suspect’s home to make a “routine” arrests, i.e., absent exigent circumstances.
2) Public places. The Court has validated warrantless arrests in public places except for misdemeanors not committed in the officer’s presence.
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T or F: A search of the area within the suspect’s
immediate control incident to an arrest comes with the arrest.
True.
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T or F: The Court has held that a full search of the person is permitted incident to a custodial arrest under the reasonableness clause of the Fourth Amendment. This same rule applies to arrests in vehicles.
True.
Thus, the police may search the entire passenger
compartment, including containers, without a search warrant incident to a lawful custodial arrest of any occupant in the vehicle, so long as the person under arrest is within reaching distance of the interior compartment of the car.
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What is a Protective sweep?
During a lawful entry to arrest, the arresting officers may
1) automatically, i.e., without probable cause or reasonable suspicion, conduct a “protective sweep” of the areas adjacent to the arrest for persons who might pose a danger to the officers or others, and
2) if there is reasonable suspicion that there are other persons who may pose a danger to the officers elsewhere, the officers may sweep the building to verify or dispel that suspicion.
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With warrantless arrests, before an extended restraint on liberty may be imposed there must be a probable cause determination by a judicial officer promptly after the arrest within..
within 48 hours of arrest.
Detention beyond that time is presumptively unreasonable in the absence of extenuating circumstances such as emergency closure of the courts or mass arrests.
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Stops and frisks. What is a Terry stop?
A Terry stop is a brief detention amounting to a seizure under the Fourth Amendment.
It may be performed on the basis of “reasonable” or “articulable” suspicion.
e.g. an anonymous tip predicting future public behavior that lacks the distinct corroboration for probable cause might suffice to provide reasonable suspicion. “Innocent” actions, in conjunction with circumstances, can establish reasonable suspicion.
A limited search, a frisk outside of outer garments to feel for weapons, is permitted upon "reasonable suspicion” that the suspect is armed and dangerous.
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Examples of reasonable suspicion vs. no reasonable suspicion
Fleeing at the sight of police in a high-crime neighborhood constitutes reasonable suspicion.
An anonymous tip describing an individual and reporting his possession of a weapon was insufficient to establish reasonable suspicion
without some corroboration other than the person’s presence at the location
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What is the limitations of a terry stop:
A Terry stop is limited, both in time and degree of intrusiveness.
Both must be reasonably related to the purpose of the stop: to confirm or dispel the suspicion.
While the Court has upheld a detention of 20 minutes, it has disapproved one of 90 minutes. Movement of the suspect, especially to a more private, and therefore confining, location also tends to make the detention more like an arrest (requiring probable cause) and less like a stop.
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T or F: Moving the traveler to an office and holding his ticket for a lengthy period exceeded the limits of a Terry stop and constituted an arrest
requiring probable cause.
True
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Scope of frisk:
A Terry frisk of outer garments is allowed when the officer has reasonable suspicion that the suspect is armed and dangerous.
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The frisk is limited to
It is limited to a patdown feel for weapons and must stop when it is apparent there is no weapon.
However, the officer may seize non-weapon contraband detected during a protective pat down search of the sort permitted by Terry, so long as the search stayed within the bounds delineated by Terry and the officer knows it is contraband by plain view or feel.
Plain-feel seizures are evaluated under a three-prong test analogous to plain-view seizures.
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T or F: The Court has extended Terry to a weapons search of the passenger compartment of an automobile stopped during a lawful investigation of its driver.
True. It is authorized to conduct a “frisk” of [portions of] an automobile for weapons if there is reasonable suspicion that the suspect has a weapon in the vehicle.
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Are Consensual encounters a temporary seizures?
A “seizure” of a person occurs when a police officer’s conduct would cause a reasonable person to believe that he is not free to terminate the encounter.
If a reasonable person would feel free to go about his business in the circumstances, then the individual has not been seized. Instead, he is participating in a “consensual encounter.”
The officer need not inform the person that he may refuse to cooperate. The subjective impressions of the person accosted are irrelevant, as are the silent intentions of the law enforcement officer.
The reasonable person in this test "presupposes an innocent person.” A consensual encounter falls short of a seizure and thus is subject to no Fourth Amendment restrictions
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Consensual encounters. During a consensual encounter, the police may:
1) approach a person;
2) pose questions;
3) ask for identification or travel documents;
4) request consent to search.
Example: Accosting a suspect on a city bus and asking for permission to search his travel bag does not constitute a seizure because a reasonable person would know that he was free to decline the officer’s request.
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A police-citizen confrontation does not
amount to a “seizure” unless the officer
unless the officer adds to the pressure inherent in the situation “by engaging in conduct significantly beyond that accepted in social intercourse.” Such conduct includes:
1) pointing a police weapon;
2) encircling the suspect;
3) roughly touching the suspect; and,
4) speaking in a tone indicating commands rather than requests.
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Where the suspect flees rather than submits to police authority, seizure does not occur until
the police officer lays on hands or applies physical force to restrain movement, even if ultimately unsuccessful.
example: If after spotting a suspected drug trafficker, a law enforcement officer seeks to question the suspect but the suspect flees, the stop or arrest does not occur until the law enforcement officer has gained physical control over the suspect or applied force. Therefore, regardless of the justification for the seizure, the exclusionary rule does not apply to any contraband dropped by the fleeing suspect during the attempted escape because the tossing preceded the challenged seizure.
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If the information given by an informant was stale (old) e.g. incident that happened two months ago.. then there is no..
If the information is stale, it will defeat probable cause by diminishing the possibility that the items in question are still at the location.
