Crim Pro - Fourth Amendment S/S - global issues, does 4th amendment apply, WARRANTS Flashcards
Search and Seizure Overview - Four “Global” Issues
(1) Whether the search or seizure is governed by the Fourth Amendment
(2) Whether a search or seizure is conducted WITH a warrant satisfies Fourth Amendment requirements
(3) Whether a search or seizure conducted WITHOUT a warrant satisfies Fourth Amendment requirements; and
(4) the extent to which evidence obtained through a search and seizure that violates the Fourth Amendment is nonetheless admissible in court
ISSUE ONE: is the search and seizure governed by the Fourth Amendment?
To determine whether 4th amendment applies to a search or seizure, must ask 4 questions:
Acronym: GAPS
(1) was search or seizure executed by a GOVERNMENT AGENT?
(2) was S/S of an AREA OR ITEM protected by 4th amendment?
(3) did govt agent either (a) PHYSICALLY INTRUDE on a protected area to obtain information; or (b) violate an individual’s REASONABLE EXPECTATION OF PRIVACY in a protected area or item
(4) Did individual subjected to search and seizure have STANDING to challenge agent’s conduct
Was S/S executed by a govt agent? (the “G” in GAPS to see whether 4th amendment applies to this S/S)
two categories of govt agents most important for bar:
(1) publicly paid police, on or off duty
(2) private citizens, if (and only if) they are acting at the direction of the police
additional categories:
- private security guards
- most common e.g. campus security at public universities
- public school administrators - e.g. principals, vice-principals
Was the search or seizure of an area or item protected by the 4th amendment? (the “A” in GAPS to see if 4th amendment applies to this S/S)
4th amendment expressly protects individuals from unreasonable S/S of their:
(1) Persons (i.e. bodies)
(2) Houses (including hotel rooms)
(3) Papers (e.g. personal correspondence); and
(4) Effects (i.e. personal belongings, such as purses, back packs and cars)
NOTE: protection of Houses includes “curtilage” which is an “area of domestic use” immediately surrounding the house
-e.g. back yard enclosed by fence; front porch
Unprotected items
Certain categories of items sufficiently “public” in nature that 4th amendment doesn’t apply to them, even if they are searched or seized by govt agents
Mnemonic: “Patty Achieved A Glorious Victory Over Her Opponents”
PAINT SCRAPINGS on the outside of your car
ACCOUNT RECORDS held by a bank
AIR SPACAE - anything that can be seen below while flying in public air space
GARBAGE left on the curb for collection
VOICE (the sound of your voice)
ODORS (most important for BAR - those emanating from car or luggage)
HANDWRITING (the style of your handwriting - i.e. handwriting exemplars are fair game)
OPEN FIELDS - anything that can be seen in or across the open fields (basically everything beyond curtilage)
NOTE: common theme for all these items: knowing exposure to third parties
Did govt agent either (a) PHYSICALLY INTRUDE on a protected area or item to obtain information; or (b) violate an individual’s REASONABLE EXPECTATION OF PRIVACY in a protected area or item? (the “P” in GAPS to see if 4th amendment applies to this S/S)
reasonable expectation or privacy - D must show
(1) an actual or subjective expectation of privacy in the area searched or the item seized; and
(2) that the privacy expectation was to be “one that society recognizes as reasonable.”
(a) a police search is PRESUMPTIVELY UNREASONABLE under the 4th Amendment when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion
- e.g. violated 4th amendment when police used “thermal imaging device” to detect “hot spots” inside the home where homeowners had placed high-intensity lights to grow marijuana
Did the individual subjected to the S/S have STANDING to challenge the government agent’s conduct? (the “S” in GAPS to see if 4th amendment applies to this S/S)
**KEY PRINCIPLE: To have authority, or “STANDING” to challenge the lawfulness of a search or seizure by a govt agent, an individual’s PERSONAL PRIVACY RIGHTS must be invaded, not those of a third party
Protected areas where person has STANDING to challenge S/S
- if they OWN PREMISES, protected
- if they do not own premises, but RESIDE THERE, protected
- if they neither own not reside but they are OVERNIGHT GUESTS there, protected, as to areas overnights guests can be expected to access
- if they neither own, nor reside, nor are staying overnight but are merely using someone else’s residence SOLELY FOR BUSINESS PURPOSES - NOT PROTECTED
- if own property seized? ONLY IF they have reasonable expectation of privacy in the AREA from which the property was seized
- if they are passengers in cars? Not as to searches of the automobile, since they do not have a reasonable expectation of privacy in a vehicle in which they are “MERELY PASSENGERS
**NY passengers in cars CAN challenge the possession of weapons, if possession is attributed to them
ISSUE TWO: Does the search warrant under which criminal evidence was gathered satisfy 4th amendment requirements (ie. REQUIREMENTS OF A 4th amendment SEARCH WARRANT)
NPGP - Nobody Prefers Gut Punches
(1) Was warrant issued by NEUTRAL and DETACHED magistrate?
(2) is warrant supported by PROBABLE CAUSE AND PARTICULARITY
(3) If not, did police officers rely on a defective warrant in “good faith” ? (applies on MBE ONLY, in **NY NO GOOD FAITH DOCTRINE)
(4) Was warranty PROPERLY EXECUTED by the police?
(1) Standard for “neutral and detached” magistrate
A judicial officer ceases to be sufficiently “neutral and detached” for 4th amendment purposes when her conduct demonstrates BIAS IN FAVOR OF THE PROSECUTION
(2) Is warrant supported by PROBABLE CAUSE and PARTICULARITY?
PROBABLE CAUSE requires proof of a “FAIR PROBABILITY” that contraband or evidence of crime will be found in the area searched.
-CAN use HEARSAY and informants’ tips (even if anonymous), as long as sufficiency of informant’s tip rests on CORROBORATION by police of enough of tipster’ information allow magistrate to make a “common sense” practical determination that probable cause exists based on the totality of the circumstances
NY** - uses stricter AGUILAR-SPINELLI TEST
when applying for search warrant, govt must establish - VBPO -“Vince Believes Police Officers”
(1) informant’s VERACITY or reliability; and
(2) his or her BASIS of knowledge
—-(a) when informer HAS NOT revealed his basis of knowledge, probable cause may be established through POLICE OBSERVATION that confirms SUFFICIENT detail “suggestive of, or directly related to, the criminal activity in question.”
Particularity Requirement
of the “probable cause and particularity” component for a search warrant
to satisfy “particularity” requirement, search warrant must specify two things:
(1) the PLACE to be searched; and
(2) the ITEMS to be seized
no “general warrants” for fishing expeditions
If a warrant is invalid for some reason (e.g. didnt satisfy “probably cause and particularity” prong) does an officer’s “good faith” save a defective search warrant?
NEVER In NY - no “good faith” in NY
on MBE, yes, can overcome deficits in probable cause and particularity UNLESS one of 4 categorical exceptions to the “good faith” doctrine applies: (EFKB) -
“Egor Faces Killer Bears”
(1) affidavit supporting the warrant application is so EGREGIOUSLY lacking in probable cause that no reasonable officer would have relied on it
(2) the warrant is so FACIALLY DEFICIENT in particularity that officers could not reasonably presume it to be valid
(3) the affidavit relied upon by magistrate contains KNOWING or RECKLESS Falsehoods that are NECESSARY to the probable cause finding
(4) the magistrate who issued the warrant is BIASED in favor of the prosecution
Was the search warrant PROPERLY EXECUTED BY THE POLICE?
two important aspects to this inquiry
(1) whether officers executing the warrant COMPLIED WITH its TERMS and LIMITATIONS- (only allowed to search those areas and items authorized by the language of the warrant)
(2) whether officers executing the warrant complied with the “KNOCK AND ANNOUNCE” rule
[knock and announce rule - requires police to knock and announce their presence AND their purpose before forcibly entering the place to be searched UNLESS the officer reasonable believes that doing so would be:
(a) futile
(b) dangerous; or
(c) would inhibit the investigation]
