Evidentiary Search and Seizure

Question 1

Four Questions for Search and Seizure Issues

Answer 1

1) whether a search or seizure is governed by the fourth amendment

2) whether a search or seizure conducted with a warrant satisfies the fourth amendment requirements

3) whether a search or seizure conducted without a warrants satisfies the fourth amendment requirements

4) The extent to which evidence obtained through a search and seizure that violates the fourth amendment is nonetheless admissible in court

Question 2

4th Amendment language

Answer 2

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Question 3

Is the search or seizure governed by the fourth amendment

Answer 3

For the 4th amendment to apply, there must be an affirmative answer to the following four questions:

1) was the search or seizure conducted by a government agent

2) was the search or seizure of an area or item protected by the fourth amendment

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 subject to the search or seizure have standing to challenge the government agent’s conduct

Question 4

Government Agents

Answer 4

1) publicly paid police (on or off duty)
2) private citizens if they are acting at the direction of the police
3) private security guards if they are deputized with the power to arrest
4) public school administrators when acting within the scope of their duties

Question 5

Areas and Items Protected by 4th Amendment

Answer 5

The fourth amendment expressly protects individuals from unreasonable searches and seizures of their

–persons (bodies)
–houses (including hotel rooms)
–papers
–effects (personal belongings - includes cars)

The protection of houses includes the curtilage - an area adjacent to the home to which the activity of home life extends

Question 6

Items Unprotected by 4th Amendment (Public Observation Generally Obliterates Fourth Amendment Protections)

Answer 6

Certain items whose routine exposure renders them sufficiently public in nature that they merit no fourth amendment protection, even if searched or seized by government agents.

–Physical characteristics (sound of voice, handwriting)
–odors that emanate from your car or luggage
–garbage left at the curb for collection
–open fields - anything that can be seen in or across the open field
–financial records held by a bank
–airspace - anything that can be seen below when flying in public airspace
–pen registers - devices that list the telephone numbers someone has dialed

Question 7

Trespass Test for Search or Seizure

Answer 7

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

Question 8

Privacy Test for Search or Seizure

Answer 8

An agent’s search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy.

The individual must show:
1) an actual or subjective expectation of privacy in the area searched or items seized; and
2) that privacy expectation was one that society recognizes as reasonable

Question 9

Technology Search or Seizure Test

Answer 9

A police search is presumptively unreasonable under the fourth 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.

Question 10

Standing to Challenge a search or seizure

Answer 10

To have the authority or standing to challenge the lawfulness of a search or seizure by a government agent, an individuals’ personal privacy rights must be invaded, not those of a third party

Question 11

Specific Standing Circumstances

Answer 11

A person will have standing to challenge a search or seizure in the following situations:

– If they own the premises searched
– If they don’t own the premises but reside there
– if they are an overnight guest (at least to areas they are expected to access)

Generally a person will not have standing in the following situations:

– if they are at the premises solely for business purposes
– they own the property seized but don’t have a reasonable expectation of privacy in the area from which the property was seized
– They are passengers in a car

Question 12

Warrant Requirement

Answer 12

Searches and seizures require a warrant, unless an exception applies

Question 13

Questions to ask when a search or seizure is conducted pursuant to a warrant

Answer 13

1) was the warrant issued by a neutral and detached magistrate
2) is the warrant supported by probable cause and particularity
3) if not, did police officers rely on a defective warrant in good faith
4) was the warrant properly executed by police

NOTE–GA does not recognize the good faith exception of reliance on a defective warrant

Question 14

Neutral and Detached Magistrate

Answer 14

a judicial officer ceases to be sufficiently neutral and detached for fourth amendment purposes when their conduct demonstrates bias in favor of the prosecution

Question 15

Warrant Supported by Probable Cause

Answer 15

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed.

Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer’s conclusions.

Question 16

Probable Cause

Answer 16

Probable cause requires proof of a fair probability that contraband or evidence of a crime will be found in the area searched

Question 17

Use of Informants for Probable Cause

Answer 17

Police may rely on information obtained through an informant’s tip, even if the information is anonymous.

The sufficiency of the informant’s tip rests on corroboration by the police of enough 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.

Question 18

Particularity Requirement

Answer 18

To satisfy the particularity requirement, the search warrant must specify the place to be search and the items to be seized

Cannot have general warrants

Question 19

Good Faith Exception

Answer 19

A warrant that is invalid due to the absence of probable cause or particularity can still be saved if the officer relied in good faith on the warrant. This good faith reliance will overcome the constitutional deficiencies in probable cause or particularity.

NOTE – GA does not recognize this exception (the warrant would be invalid)

Question 20

When the Good Faith Exception Does Not Apply

Answer 20

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

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

3) The affidavit relied upon by the 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 (not neutral and detached)

Question 21

GA Invalid Warrant Rule

Answer 21

GA does not recognize the good faith exception to a defective warrant.

In GA, evidence obtained under an invalid search warrant is excluded from evidence regardless of the executing officer’s good faith.

However, this does not preclude the consideration of other exceptions to the exclusionary rule.

Question 22

Two injuries to make when determining whether a valid warrant was properly executed.

Answer 22

1) did the officers comply with the terms and limitations of the warrant
2) did the officers comply with the knock and announce rule

Question 23

Compliance With the Warrant’s Terms and Limitations

Answer 23

In executing the warrant, officers are allowed to search only this areas and items authorized by the language of the warrant.

Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant

Question 24

Search of Persons Found on Searched Premises

Answer 24

When executing a search warrant, officers may detain occupants found within or immediately outside the premises at the time of the search.

However, a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.

However, if an officer has reason to believe any person present is armed and dangerous, the officer may conduce a Terry pat down

Question 25

GA Search of Persons at Searched Premises and Date of Execution

Answer 25

In GA, when executing a search warrant, police officers may reasonably detain or search any person to protect themselves or to prevent destruction of evidence.

In GA, a search warrant must be executed within 10 days of its issuance (after becomes stale)

Question 26

Knock and Announce Rule

Answer 26

The police must knock and announce their presence and purpose, and wait a reasonable time for admittance before forcibly entering the place to be searched, unless the officers reasonably believe that doing so would

1) be futile or dangerous; or
2) inhibit the investigation

Question 27

Violations of Knock and Announce Rule

Answer 27

The Supreme Court has held that a violation of the knock and announce rule does not result in suppression of the evidence otherwise properly obtained – the exclusionary rule does not apply to the knock and announce rule.

Question 28

Wiretapping Warrant Requirements (Screen Telephone Calls Carefully)

Answer 28

There are four requirements for a valid wiretap warrant

S–Suspected Persons - the warrant must name the suspected persons whose conversations are to be overheard

T–Time - The wiretap must be for a strictly limited time period

C–Crime - There must be probable cause that a specific crime has been committed

C–Conversations - The warrant must describe with particularity the conversations that can be overheard

Question 29

Exceptions to Wiretapping Requirements

Answer 29

If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no fourth amendment claims (assume the risk the other party is an informant)

A speaker has no fourth amendment claim if they make no attempt to keep a conversation private