Fourth Amendment Flashcards
What type of conduct does the 4th amendment apply to?
Applies ONLY to government conduct
What triggers the 4th amendment?
Triggering the Fourth Amendment: Identifying a Seizure or Search
4th amendment: What is a Seizure of a person?
Seizure of Persons: When, due to government action, a reasonable person in the defendant’s position would not feel free to leave or terminate a police encounter
(1) Police need to use physical force OR a showing of authority followed by submission (2) Terry Stop: A brief investigatory seizure. The difference with arrest is duration and purpose. The permissible duration is the time necessary to confirm a REASONABLE SUSPICION that a crime has occurred; if so, police now have probable cause (PC). If suspicion is denied, seizure must stop
4th amendment: What is a Seizure of property?
Seizure of Property: Police take action that results in a meaningful interference with a possessory interest
4th amendment: What is a search?
Any government investigatory trespass against a Fourth Amendment interest OR intrusion into a reasonable expectation of privacy (REP)
4th amendment: Search
Investigatory trespass
Intrusion upon target’s person, home (including curtilage), papers, or effects for the purpose of finding or gathering evidence of a crime. Police need an investigatory motive
4th amendment: Search
Reasonable Expectation of Privacy (REP)
This requires that:
(1) the defendant manifests a subjective expectation of privacy by making an effort to shield the thing or activity from the public; AND
(2) the expectation is objectionably reasonable because it is an expectation society is willing to recognize
(a) No REP if objects are held out to the public (i.e., handwriting, voice, bank records, email headings, open fields, or discarded property)
Key Point
a trespass on an “open field” (private property beyond the curtilage of the home) does not qualify as an investigatory trespass-type search because the open field is not considered part of the home
Key Point
unlike the trespass search, the REP approach is not limited to the places/things enumerated in the text of the 4th amendment
Exam tip!
the SC has held that even though cell site location information is shared with the cell phone provider, it nonetheless falls within a REP because there is no genuine voluntary choice to share such information
this means police access to cell site location information is a search
Police use of Animals to Enhance senses
normally, the use of sensory enhancements does not transform something that is not a search into a search
when police use dogs to detect odor of narcotics, this is not a search because a dog sniff is considered capable of exposing only the presence of contraband, and therefore does not intrude on a legitimate expectation of privacy
HOWEVER, if police bring the dog onto the curtilage of the home and allow it to explore for a scent, this physical trespass of the home qualifies as a search
Police use of Devices to enhance senses
Use of commonly available equipment to enhance the natural senses of sight, hearing, or smell will not qualify as a search unless:
• police enter upon the curtilage of the home to utilize the device; or
• police use a device (like a thermal imager) that enables them to see “through the walls” of a home.
Exam tip!
Using binoculars while sitting in a police car on the street to enhance the view of a suspect’s property or activities on his curtilage is not a search. However, using a thermal or x-ray imaging device that reveals the location of property or activities the suspect sought to conceal inside their home is a search.
A search or seizure must be?
REASONABLE
A warrant creates a presumption of….?
REASONABLENESS
The D bears the burden of?
Rebutting this presumption of reasonableness by proving:
i) the warrant was not based on valid probable cause;
ii) the magistrate was not neutral or detached;
iii) the warrant failed to describe with particularity the thing to be seized or place to be searched; or
iv) the affidavit
Any search or seizure without a warrant is presumptively unreasonable; the government bears the burden of proving that it falls within an established exception
Key Point
When police act within the scope of a valid warrant, they may seize any item they observe so long as what they see, smell, or feel provides probable cause that the item is contraband, even if it is not listed in the warrant.
What is Probable Cause?
Probable Cause (PC): “Fair probability.” Facts and circumstances that would make a reasonable person conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location i) Always required for full-scale intrusion (search to find evidence or an arrest)
ii) Can be based on a tip from a confidential or anonymous informant. The totality of the circumstances test used for the reliability of tips considers:
(1) the veracity of the informant (normally predictive information);
(2) the basis of their knowledge (how does the informant know the activities of the suspect?); and
(3) a police investigation that corroborates the facts in the tip and validates the accuracy of the informant’s predictions
What is Reasonable Suspicion?
A belief based upon articulable information (more than a mere hunch) used by a reasonable person or cop that the suspect has or is about to engage in illegal or criminal activity
i) Reasonable suspicion is a level of certainty that will justify only a brief investigatory seizure (Terry stop) or cursory protective search (Terry frisk)
What are the exceptions to the warrant requirement for SEIZURES? (3)
- arrests
- Terry Stops
- Seizures of property
What are the exceptions to the warrant requirement for SEARCHES? (10)
- Exigency
- SITLA
- Automobile SITLA
- Automobile Exception to the warrant requirement
- Inventory Exception
- Consent
- Special Needs Doctrine
- Border Exception
- Administrative Searches
- Terry Frisk/ Search
Exception to the warrant requirement for seizures
Terry Stops
Reasonable suspicion that a crime is in progress or has just been committed justifies a brief investigatory seizure (Terry stop) to confirm or rule out suspicion
i) Established by:
(1) police observations and eyewitness reports;
(2) flight from police in high-crime areas; and
(3) an informant’s tip plus police investigation that corroborates the tip (don’t need insider access)
ii) Scope: Time required, acting in due diligence to confirm or deny suspicion
Exception to the warrant requirement for seizures
Seizures of Property
A warrant (based on PC) is presumptively, but not always, required to justify seizure of property
i) No warrant is required if the property is in plain view, which requires:
(1) the police are in a lawful vantage point to observe the item;
(2) it is immediately apparent that the item is contraband; and
(3) the officer has lawful access to the point of seizure
Warrant Execution
o Even when police act pursuant to a valid warrant, how they execute it may render their action unreasonable.
-Warrant execution that “shocks the conscience” is unreasonable.
Knock-and-announce Rule
Police must “knock and announce” their identity before entering the home to execute the warrant.
Knock and announce is NOT required if the police have a reasonable suspicion that doing so will endanger the officers, lead to destruction of evidence, or cause the flight of the suspect.
Violation of the knock-and-announce requirement will not result in exclusion of evidence.
What do you need to issue a warrant?
o The Fourth Amendment requires that probable cause to support issuance of a valid search or arrest warrant be given to any neutral magistrate.
o Probable cause (PC) means a “fair probability,” and exists when there are facts and circumstances that lead a reasonable officer (objective standard) to conclude that the individual committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).
What do you need to issue a warrant?
o The Fourth Amendment requires that probable cause to support issuance of a valid search or arrest warrant be given to any neutral magistrate.
o Probable cause (PC) means a “fair probability,” and exists when there are facts and circumstances that lead a reasonable officer (objective standard) to conclude that the individual committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).
How is probable cause tested?
PC is tested objectively based on facts and circumstances; a police officer’s subjective motive, even if improper, will not invalidate PC.
PC may be established in many ways, including eyewitness observations, forensic evidence, or a suspect’s own admissions.
When police rely on an informant’s tip to establish PC, a totality of circumstances test is used to determine whether the tip is sufficiently reliable.
• The tip may serve as a basis for a valid probable cause arrest if reliability is established by:
o the informant’s tip containing specific details; and
o the reliability of both the details and the informant being confirmed prior to the moment of arrest.
