Criminal Procedure Issue 1 - Whether a search or seizure is governed by the 4th Amendment?

Question 1

Search and Seizure Overview; Four Global Questions

Answer 1

1. Whether a search or seizure is governed by the 4th Amendment?
2. Whether a search or seizure conducted WITH a warrant satisfies 4th Amendment requirements? 3. Whether a search or seizure conducted WITHOUT a warrant satisfies 4th amendment requirements? 4. The extent to which evidence obtained through a search and seizure that violates the 4th Amendment is nonetheless admissible in court?

Question 2

Four key questions for issue one that must be answered affirmatively

Answer 2

1. Was the search or seizure executed by a government agent? 2. was the search or seizure of area or item is protected by the 4th? 3. Did the government 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? 4. Did the individual subjected to the search have STANDING to challenge the government agent’s conduct?

IF answered yes, still CAN BE ALLOWED

Question 3

Q1; Q1 What is a government agent? –> Public Figures

Answer 3

1. Publically paid police (on or off duty) –> MOST IMPORTANT
2. Public Schoool Administrators (ex. Principals, VPs)

Question 4

Q1; Q1 What is a government agent –> Private Figures

Answer 4

1. Private citizens, if AND ONLY IF they are acting at the direction of the police
2. Private Security Guards, but ONLY if they are deputized with the power to arrest (most common examples: campus security at public universities)

Question 5

Q1; Q2 The 4th expressly protect individuals from unreasonable searches and seizures of their what?

Answer 5

1. Persons (i.e. their bodies)
2. Houses (including hotel rooms)
3. Papers (e.g. personal correspondence); AND
4. Effects (personal belongings, e.g. purses, backpacks, cars)

Question 6

Q1; Q2 Rules about “houses”

Answer 6

The protection of “houses” including the “curtilage” an area adjacent to the home “to which the activity of home life extends”

Ex: front porch; back yard enclosed by fence (if a massive property it only extended to the enclosed area, the rest of the land is not protected)

Question 7

Q1; Q2 Unprotected Items

Answer 7

“Public Observations Generally Obliterates Fourth Amendment Protection”

P: Physical Characteristics (e.g. the sound of your voice, the style of your handwriting)

O: Odors that emanate from your car or luggage

G: Garbage left at the curb for collection

O: Open fields; anything that can be seen IN or ACROSS

F: Financial Records held by a bank

A: Airspace, anything that can be seen below flying in public airspace

P: Pen Registers devices that list the telephone numbers someone has dialed

Question 8

Q1; Q3 Two Ways in which searches and seizures by government agents can implicate an individual’s 4th amendment rights

Answer 8

1. Trespass-based Test; OR
2. Privacy-based Test

Question 9

Q1; Q3 Trespass-based Test

Answer 9

The agent physically intruded on a constitutionally protected area in order to obtain INFORMATION

Question 10

Q1; Q3 Privacy-based Test (generally)

Answer 10

The agent’s search or seizure of a constitutionally protected area violated an individual’s REASONABLE EXPECTATION of privacy

Question 11

Q1; Q3 Privacy-based Test (actual test)

Answer 11

To satisfy the PBT, an individual must show:
1) an ACTUAL or SUBJECTIVE expectation of privacy in the area searched or items seized; AND

2) That the privacy expectation was be “one that society recognizes as reasonable”

Question 12

Q1; Q3 Privacy-based Test (presumption of unreasonableness)

Answer 12

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 PHYSICALY INTRUSION (ex. Thermal imaging devices)

Question 13

Q1; Q4 Key Principal

Answer 13

To have authority, or “standing” to challenge the lawfulness of a search and seizure by a government agent, an individual’s PERSONAL privacy rights must be invaded, not those a third party

If he doesn’t have standing the evidence can be INTRODUCED AGAINST the defendant at trial

Question 14

Q1; Q4 –> Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing”

1. If they OWN the premises searched?

Answer 14

Yes

Question 15

Q1; Q4 –> Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing”

If they do not own the premises, but the RESIDE there?

Answer 15

Yes

Question 16

Q1; Q4 –> Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing”

If they neither own nor reside in the premises searched, but they are OVERNIGHT GUESTS there?

Answer 16

Limited as to areas overnights guests CAN BE EXPECTED TO access

COMMON AREAS

Question 17

Q1; Q4 –> Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing”

If they neither own, nor reside, nor are staying overnight but are merely using someone else’s residence SOLELY for business purposes?

Answer 17

No

Ex: apartment of acquaintance used only to bag cocaine

Question 18

Q1; Q4 –> Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing”

If they are passengers in cars?

Answer 18

Not as to searches of the automobile, since they do not have a reasonable expectation of privacy in a vehicle in which they are “guests”

Ex: Passenger has no standing to challenge the search of a car where the officer found a sawed=off rifle under the front passenger’s seat

Question 19

Q1; Q4 –> Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing”

If they own the property seized?

Answer 19

ONLY if they have a reasonable expectation of privacy in the AREA from which the property was seized

Ex: Man who hides drugs in girlfriend’s purse? NO

In a sense, by handing it over, you have made it PUBLIC (i.e. no reasonable expectation of privacy)