Evidentiary Search and Seizure Flashcards
Four Questions for Search and Seizure Issues
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
4th Amendment language
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.
Is the search or seizure governed by the fourth amendment
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
Government Agents
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
Areas and Items Protected by 4th Amendment
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
Items Unprotected by 4th Amendment (Public Observation Generally Obliterates Fourth Amendment Protections)
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
Trespass Test for Search or Seizure
The agent physically intruded on a constitutionally protected area in order to obtain information
Privacy Test for Search or Seizure
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
Technology Search or Seizure Test
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.
Standing to Challenge a search or seizure
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
Specific Standing Circumstances
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
Warrant Requirement
Searches and seizures require a warrant, unless an exception applies
Questions to ask when a search or seizure is conducted pursuant to a warrant
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
Neutral and Detached Magistrate
a judicial officer ceases to be sufficiently neutral and detached for fourth amendment purposes when their conduct demonstrates bias in favor of the prosecution
Warrant Supported by Probable Cause
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.
Probable Cause
Probable cause requires proof of a fair probability that contraband or evidence of a crime will be found in the area searched
Use of Informants for Probable Cause
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.
Particularity Requirement
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
Good Faith Exception
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)
When the Good Faith Exception Does Not Apply
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)
GA Invalid Warrant Rule
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.
Two injuries to make when determining whether a valid warrant was properly executed.
1) did the officers comply with the terms and limitations of the warrant
2) did the officers comply with the knock and announce rule
Compliance With the Warrant’s Terms and Limitations
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
Search of Persons Found on Searched Premises
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
