Fourth Amendment

Question 1

Contains two distinct parts -

1. Defines the right, which requires that all government searches and seizures be reasonable
2. Warrant Clause - government must establish probable cause to obtain search or arrest warrants, those warrants must particularly describe place(s) to be searched and person or thing to be seized

Private search - evidence may be admissible against a defendant, even if the private citizen acted illegally to conduct the search, unless the citizen is acting as an instrument or agent of the government

The term government does not refer solely to law enforcement

Fourth Amendment

Answer 1

FOURTH AMENDMENT APPLIES WHEN;

Question 2

Requires - a trespass or physical intrusion by the government upon a constitutionally protected area and intent to gather information

Search based on a common-law trespass analysis and required a physical intrusion of protected areas (persons, houses, papers, and effects)

GPS Tracking Case - physical intrusion, subsequent monitoring provided the required intent to gather information

Fourth Amendment

Answer 2

THE JONES ANALYSIS;

Question 3

Reasonable Expectation of Privacy

Case - defendant did not have an ownership or possessory interest

Two prong test - (the absent of either means there is NO REP)

1. the individual must have exhibited an actual (subjective) expectation of privacy
2. that expectation must be one that society is prepared to recognize as reasonable

Fourth Amendment

Answer 3

THE KATZ ANALYSIS;

Question 4

Observations made from a lawful vantage point that develop probable cause are not “search” under the Fourth Amendment.

Perception made through seeing, hearing or smelling

Fourth Amendment

Answer 4

PLAIN VIEW DOCTRINE;

Question 5

Beneath the skin, internal evidence (blood, etc.)

External evidence (fingerprints, handwriting, or voice samples) are lawful seized from suspect

Fourth Amendment

Answer 5

THE BODY; COMMON SEARCH AREAS;

Question 6

No REP in the exterior

Owner/operator has REP for the interior

Plain View - may provide probable cause to allow entry and seizure

Passengers - has REP personal property - purse/backpack, unless when officer is authorized to search the vehicle itself

Fourth Amendment

Answer 6

VEHICLES; COMMON SEARCH AREAS;

Question 7

REP exists even if temporarily unoccupied

Overnight guests or frequent visitor of a homeowner are entitled to REP
A social visitor or commercial history has NO REP

Hotel or Motel - registered occupant of the room, shared room with another who is registered, ever checked out of the room, had the right to control or exclude other use of the property has REP; NO REP in common areas (stairwells or hallways)

Fourth Amendment

Answer 7

HOMES; COMMON SEARCH AREAS;

Question 8

Under Katz, has REP, which do not reveal their contents (not see through)

Fourth Amendment

Answer 8

CONTAINERS; COMMON SEARCH AREAS;

Question 9

Areas of individuals property that are considered open fields (babies can crawl there)

means the area in which the intimate activity associated with the sanctity of the home and the privacies of the life takes place

Answer 9

CURTILAGE AND OPEN FIELDS; COMMON SEARCH AREAS;

Question 10

Has REP in their government offices, filing cabinets, and computers

Supervisors may search without a warrant while looking for work related items, files or materials. Or has reasonable suspicion of work-related misconduct.

Fourth Amendment

Answer 10

GOVERNMENT WORKPLACES;

Question 11

No REP by denying ownership or knowledge of it

Has REP in garbage even if close to house (curtilage) unless placed on curb of a public street

Fourth Amendment

Answer 11

ABANDONED PROPERTY;

Question 12

REP only of first class and higher mail sent through the USPS

No REP outside of the letter or package

Fourth Amendment

Answer 12

MAIL;

Question 13

Does not intrude into REP, unless dog jumps on person

Fourth Amendment

Answer 13

CANINE SNIFFS;

Question 14

Lawfulness of using devices to enhance senses such as the sophistication of the device and officers view in public or in private

Binoculars and telescopes are unsophisticated devices, counts as surveillance but not a search. Looking into someones house may be a search

Darkness does not create REP, using a flashlight around a car, barn or detached garage. But use of thermal imaging requires a search

Fourth Amendment

Answer 14

SENSORY ENHANCEMENTS;

Question 15

Overflights to detect criminal activity is common in law enforcement

Must operate in FAA regulations airspace

Fourth Amendment

Answer 15

AIRCRAFT OVERFLIGHTS;

Question 16

Tracking devices count as REP of their physical movements, need a search warrant

Fourth Amendment

Answer 16

CELL SITE LOCATION INFORMATION;

Question 17

Consensual encounter
An investigative detention or “Terry stop”
An Arrest

A person is seized based on the totality of the circumstances

A reasonable person would not feel free to leave or otherwise terminate the encounter

Fourth Amendment

Answer 17

POLICE-CITIZEN ENCOUNTERS;

Question 18

The officer may approach and individual and ask questions, even incriminating questions

Officer may request, but not demand, to see an individuals identification

Officer may identify themselves

Officer may seek consent for a search or a frisk

Fourth Amendment

Answer 18

VOLUNTARY CONTACTS;

Question 19

Must have reasonable, articulable suspicion that criminal activity is afoot and the person detained is somehow involved

Fourth Amendment

Answer 19

TERRY STOPS;

Question 20

Reasonable suspicion that criminal activity is afoot

Accepts the risk that officers may stop innocent people

reasonable suspicion is a lower stand than probable cause the officer must still have explainable (articulable) justify a temporary seizure of a person

Can include specialized training and experience for totality of the circumstances

A crime is about to be committed, is being committed, or has been committed

Fourth Amendment

Answer 20

TERRY STOP REQUIREMENTS;

Question 21

Officer’s personal observations from information provided by other LEO’s (collective knowledge) for reasonable suspicion

Victim/Witness facts provided can establish reasonable suspicion

Reliable informants - depends on quantity and quality of the information

Fourth Amendment

Answer 21

TERRY STOP - ESTABLISHING REASONABLE SUSPICION;

Question 22

Heard, saw, or learned that led the officer to reasonably suspect the criminal activity was afoot

Fourth Amendment

Answer 22

TERRY STOP; FACTORS JUSTIFIYING INVESTIGATIVE DETENTIONS;

Question 23

Must be reasonable in length

Can last no longer than needed to carry out the stop’s purpose

Officer should use the least intrusive investigative methods

A Terry stop must be reasonable in time, place, and manner

Fourth Amendment

Answer 23

TERRY STOPS; DURATION OF AN INVESTIGATIVE DETENTION;

Question 24

The purpose of the stop and the nature of the crime
Whether the officer diligently conducted the detention
The amount of force used and the need of such force
Freedom of movement of restraint
Number of officers involved
Length and intensity of the stop
Time and location of the stop
Need for immediate action

A de facto arrest not supported by probable cause is an illegal arrest

Fourth Amendment

Answer 24

TERRY STOPS - GOING FROM INVESTIGATIVE DETENTION TO ARREST;

Question 25

This frisk is a putdown of suspect outer clothing to discover weapons that individual could use against the officer during an investigative stop

Officer may not use frisk to look for evidence of a crime

May also look at items in immediate control/possession

Two requirements for a frisk

1. the detention leading to the frisk must be lawful
2. the officer must reasonably suspect there person is armed/dangerous

Fourth Amendment

Answer 25

TERRY FRISK;

Question 26

Establish reasonable suspicion that suspect is presently armed/dangerous through variety of methods, observations, information from LEO’s, information from third parties

Courts will examine the totality of the circumstanes

Fourth Amendment

Answer 26

TERRY FRISK - FACTORS USED TO JUSTIFY A TERRY FRISK;

Question 27

The purpose of a Terry frisk is to discover weapons, not evidence of a crime

May seize contraband detected during the lawful execution of a Terry frisk

Must meet two requirements:

1. frisk that leads to discovery of the evidence must be lawful
2. the incriminating nature of the item must be immediately apparent to the officer without manipulation

Can retrieve hard objects, potential to be a weapon, but not soft objects

Fourth Amendment

Answer 27

TERRY FRISK - THE PLAIN TOUCH DOCTRINE;

Question 28

The officer must have, at a minimum, reasonable suspicion that the person stopped is engaged in criminal activity (Terry Stop). Officer may also conduct a stop if reasonable suspicion that a person in the vehicle is wanted for a past criminal conduct, or reasonable suspicion that the vehicle is carrying contraband.

Fourth Amendment

Answer 28

DETAINING VEHICLES;

Question 29

Ordering the driver and passenger out of the vehicle
Ordering the driver and passengers to remain in the vehicle
Using a flashlight to illuminate the interior of the vehicle
Conducting license and registration checks
Questioning the driver regarding his or her travel plans

Fourth Amendment

Answer 29

DETAINING VEHICLES - PERMISSIBLE ACTIONS DURING;

Question 30

Officer may frisk that person, as well as the entire passenger compartment of the vehicle, including any unlocked containers in the passenger compartment. May NOT frisk trunk of a vehicle

Locked immediate access based on availability of the key can be frisked

Fourth Amendment

Answer 30

DETAINING VEHICLES - TERRY FRISK OF A VEHICLE;

Question 31

Vehicle must be temporary and last no longer than is necessary to carry out the stop’s purpose

Fourth Amendment

Answer 31

DETAINING VEHICLES - DURATION OF VEHICLE STOPS;

Question 32

When officer uses legal justification at stop, an observed traffic violation to stop an individual in order to investigate a different, more serious crime which no reasonable suspicion exists (drug trafficking)

Fourth Amendment

Answer 32

DETAINING VEHICLES - PRETEXTUAL VEHICLE STOPS;

Question 33

Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation or Gender Identity

Unbiased manner, only related to national security and intelligence

Trustworthy information, relevant to the locality or time frame that could link person to the crime

Fourth Amendment

Answer 33

THE USE OF RACE IN LAW ENFORCEMENT;

Question 34

Fluid concept, turning on the assessment of probabilities in particular factual contexts

Search - known facts and circumstances are sufficient to belief that contraband or evidence of a crime will be found in the place to be searched

Arrest - known facts and circumstances are sufficient to warrant the suspect has committed or was committing an offenses

Also can be known as reasonable belief

Fourth Amendment

Answer 34

PROBABLE CAUSE;

Question 35

Totality of the circumstances

Fourth Amendment

Answer 35

THE TEST FOR PROBABLE CAUSE;

Question 36

Officer can established probable cause through direct observations (senses)

Rely on facts establishing probable cause from another LEO

Third party or confidential informants

Non-human sources

Fourth Amendment

Answer 36

ESTABLISHING PROBABLE CAUSE;

Question 37

Aguilar Test

1. credibility of the informant
2. the informant basic of knowledge

If your missing it then follow the patterns

Proven track record, statement agains interest, corroboration, first-hand information, face to face meetings with informant, consistency between independent informants, and the degree of detail provided

Fourth Amendment

Answer 37

USING CONFIDENTIAL INFORMANTS TO ESTABLISH PROBABLE CAUSE;

Question 38

Rejected the Aguilar test and adopted the Gates approach of totality of the circumstances to determine probable cause

Fourth Amendment

Answer 38

USING CONFIDENTIAL INFORMANTS TO ESTABLISH PROBABLE CAUSE; THE EFFECTS OF GATES ON AGUILAR;

Question 39

The rule essentially states that evidence obtained as a result of an unlawful search and/or seizure is inadmissible in criminal trails

Fruits of the poisonous tree

The purpose is to deter police misconduct

Fourth Amendment

Answer 39

THE EXCLUSIONARY RULE;

Question 40

A defendant must demonstrate that personally has an REP in the place searched, and that expectation is reasonable, unless government has violated a defendants Fourth Amendment rights, the defendant will not benefit from the rule protection

Fourth Amendment

Answer 40

NO STANDING TO OBJECT; EXCEPTIONS OF THE EXCLUSIONARY RULE;

Question 41

When falsely testifies

Exception, the government may use illegally obtained evidence to impeach

1. a defendant’s testimony on direct examination
2. a defendant’s statement sin response to proper cross-examination

Fourth Amendment

Answer 41

IMPEACHMENT; EXCEPTIONS OF THE EXCLUSIONARY RULE;

Question 42

Evidence seized by the government reliance on a warrant issued by a neutral and detached judge based upon what the government reasonably believes to be probable cause will be admissible even if a court later concludes that no probable cause existed

Exception
Misleads judge with information that was false
Warrant has abandoned the neutral and detached role
Lacking probable cause
Wrong place for search

Fourth Amendment

Answer 42

GOOD FAITH; EXCEPTIONS OF THE EXCLUSIONARY RULE;

Question 43

Exception requires that LEO’s be actively pursuing an alternative investigation at the time the constitutional violation occurred

Fourth Amendment

Answer 43

INEVITABLE DISCOVERY; EXCEPTIONS OF THE EXCLUSIONARY RULE;

Question 44

Must contain the following
Signature of the judge
Name of the defendant - description can be identified
Offense charged - in the indictment or information
Command to Arrest

Fourth Amendment

Answer 44

FEDERAL ARREST WARRANT;

Question 45

Only a US Marshall or authorized officer
Territorial Limits - within the jurisdiction of the US or anywhere else a federal statue authorizes an arrest
Limit Limits - no time frame

Fourth Amendment

Answer 45

EXECUTING ARREST WARRANTS;

Question 46

Three requirements for a lawful arrest

1. Probable cause
2. Arrest authority
3. A lawful right to access to the suspect

Fourth Amendment

Answer 46

ARREST; ARREST AUTHORITY;

Question 47

Officer must have, reasonable belief that the suspect lives at the home and reasonable belief that the suspect is currently present in the home

Fourth Amendment

Answer 47

ARREST; ENTERING THE SUSPECTS HOME TO MAKE AN ARREST;

Question 48

An arrest does not allow government to enter a home where the target does not reside to make the arrest

Must have, search warrant, the consent of the third-party homeowner/occupier or an exigent circumstance

Fourth Amendment

Answer 48

ARREST; ENTERING A THIRD-PARTY’S HOME TO MAKE AN ARREST;

Question 49

When officer has probable cause to believe that a suspect located in a public place has committed a felony offense, they may make a warrantless arrest of that person.

Presumes that the officer is authorized by statue or otherwise to do so

If probable cause is located inside a residence, they must have consent or exigent circumstance to enter the residence to make an arrest without a warrant

Fourth Amendment

Answer 49

WARRANTLESS ARREST - FELONIES;

Answer 50

WARRANTLESS ARREST - MISDEMEANORS;