Fourth Amendment

Question 1

What is the test for seizure?

Answer 1

Objective

• Reasonable person would believe he is not free to leave
• Must be intentional physical fore or show of authority.

Question 2

Who has standing for a 4th Amendment claim?

Answer 2

Personal, may not be asserted vicariously.

Question 3

To what does the exclusionary rule apply?

Answer 3

Criminal trials only.

Note: judicially created.

Question 4

Does the 4th Amendment apply to search and seizure by private actors?

Answer 4

No.

Only governmental action. Unless acting as an instrument or agent of government.

Question 5

What is a custodial interrogation?

Answer 5

Custodial = Formal arrest. If none, totality of circumstances.

• Police station: not custodial alone.
• Traffic stops/crime scene: not custodial
• Prison: not custodial alone.

Interrogation: express questioning, or any words police know or should know are reasonably likely to elicit a response.
- Voluntary is ok. Lying and deceit are ok too by police.

Question 6

When is a search unreasonable?

Answer 6

When the government; (1) invades a place protected by a reasonable expectation of privacy; or (2) physically intrudes upon a constitutionally protected area for the purposes of gathering information.

Question 7

Where are the places where there is a reasonable expectation of privacy?

Answer 7

Home: Yes (including curtilage)

Open Fields: No

Overnight guest in home: yes

Motel Room: yes

Business Premises: yes

Prison: no.

Question 8

What is the exclusionary rule?

Answer 8

Evidence obtained in violation of the accused’s 4th Amendment rights, 5th/6th Amendment rights, may not be used against accused at trial.

Fruit of the poisonous tree.

Question 9

What are the exceptions to the exclusionary rule?

Answer 9

Inevitable Discovery

Independent Source

Attenuations (passage of time or intervening act)

Good-Faith

• Valid warrant later invalidate.
• Existing law reversed. Not applicable if warrant invalid on face, improperly executed, or obtained by fraud, etc.

Isolated police negligence - anything less than gross negligence.

Know and announce: DOES NOT APPLY

In-Court ID: DOES NOT APPLY.

Question 10

What are the exceptions to the warrant requirement generally?

Answer 10

Search Incident to a Lawful Arrest

Exigent Circumstances

Stop and Frisk

Automobile Exception

Plain-View

Consent

Administrative, Special Needs, and Inventory Searches

Wiretapping

Question 11

What is an arrest warrant?

Answer 11

Issued by a detached and neutral magistrate upon finding of probable cause that a crime committed and person did it.

Note: even if warrant invalid, officer can still arrest on independent probable cause.

Implicitly authorizes entry into ARESTEES house. If in 3rd party’s home, need consent, exigent circumstances or a search warrant for 3rd party’s home and arrest warrant.

Question 12

What are the rules for warrantless arests?

Answer 12

Ok if in a public place.

Ok if crime in front of officer.

Ok when felony committed outside officer’s presence, officer may arrest anyone he has probable cause to believe committed felony.

Ok if arrest is for misdemeanor when fine is only penalty.

Illegal arrest alone does not affect criminal prosecution unless there is a seizure too.

Question 13

What is a search incident to a lawful arrest?

Answer 13

Allowed to search wingspan.

If arrest occurs in home, can search within protective sweep - adjacent spaces. If reasonable suspicion for other areas, can search there.

Must be contemporaneous with arrest.

Does not extend to cell phone and laptops

Vehicle compartment - requires aw enforcement to demonstrate either; (1) that the arrestee is within reaching distance of compartment or (2) reasonable that evidence might be found there.

Question 14

What is the exigent circumstances exception?

Answer 14

Probable cause and exigent circumstances

• totality of circumstances test.
• May secure premises for reasonable time when evidence could be destroyed.

Hot Pursuit

• Must be for felony
• Can enter building, search and seize.

Emergency
- Objective test. Not subjective motive or seriousness of crime.

Question 15

What is a stop and frisk?

Answer 15

Stop: reasonable suspicion plus articulable facts.
- Totality of circumstances. No hunches.

Frisk- reasonable suspicion plus necessary for safety of self or others.

• Plain Feel Exception: readily identifiable.
• Must be temporary, if not it becomes and arrest.

Cars

• Passenger compartment search ok if reasonable believe suspect is dangerous and limited to places where weapon could be found.
• If probable cause develops, can make search incident to arrest.

Question 16

What is the automobile exception?

Answer 16

May search anywhere in care if there is probable cause to do so.

Can extend to passenger’s belongings.

Pretext stop is allowed.

Only extends to where evidence is.

If only a container search, search container only.

Question 17

What are administrative, special needs, and inventory searches?

Answer 17

Adminsitrative
- Airplane boarding and public schools

Special Needs
- Student athletes during season, boarder.

Inventory
- Impound car.

Question 18

What methods are allowed for search?

Answer 18

Fly-Over: yes

GPS: No (need warrant)

Cell-Site Information: No (need warrant)

Radar: Yes

Dog Sniff

• If physical intrusion: No (need warrant)
• If no physical intrusion: Yes.

Question 19

What is the plain view doctrine?

Answer 19

In public view: Can seize

In private view, allowed if

• Officer is lawfully present on premises;
• The incriminatory character is immediately apparent
• Officer has lawful access to them.

Question 20

When can police set up a checkpoint for the purposes of seeking information about a crime?

Answer 20

Checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend other individuals (not occupants).

The stop advances a public concern to a significant degree;

AND

Police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and minimally interfere with 4th Amendment liberties.

Question 21

What is the rule for wiretapping?

Answer 21

Warrant must:
- Be limited to a short period of time

• Demonstrate probable cause that a specific crime has or will be committed.
• Name the person to be tapped
• Describe with peculiarity conversations to be overheard.

AND

• Provisions for termination of tap.

Question 22

What are consent searches?

Answer 22

Voluntary

• Totality of circumstances
• Failure to inform that someone can withhold consent does not invalidate.

Third-Party
- Authority to consent to property they own, but not defendant’s (unless agency)

Jointly Owned

• Must get consent of both, unless defendant not there.
• Landlord cannot consent for tenant. Tennant has control.

Question 23

What objects have a reasonable expectation of privacy?

Answer 23

Papers and Effects

• Luggage: no expectation for smell emitting from object.
• No expectation when transferred to 3rd party.

Automobiles

• Officers must have articulable reasonable suspicion.
• Checkpoints: ok if neutral or immigration.
• VIN: No expectation.

Abandoned property/Trash: No expectation

Blood Samples: require warrants.

Breath Samples: No warrant needed.

Handwriting/Voice Sample: No expectation.

Question 24

What are the requirements of a valid search warrant?

Answer 24

Issued by a neutral and detached magistrate based o probable cause, must be supported by oath or affidavit and describe items/places to be searched and seized.

Probable cause can come from officers personal observations, information from known or reliable informant, unknown informant if they are verified, evidence seized from stops based on reasonable suspicion, plain view evidence, consented to search evidence.

Particularity: “crime” (evidence of crime) = limited to particular crime. “Other fruits at this time unknown” is ok.

Must be timely executed.

Knock and Announce Rule: violation does not trigger exclusionary rule.

Question 25

Does a student retain a reasonable expectation of privacy in items brought onto school property?

Answer 25

Yes.

This expectation of privacy, however, must yield when school officials have reasonable grounds for a search of the student’s belongings.

Question 26

What must student searches need to be reasonable?

Answer 26

For such student searches to be reasonable, the school personnel must have a “moderate chance” of finding the expected evidence, and the measures adopted for the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.