Fourth Amendment Flashcards
Contains two distinct parts -
- Defines the right, which requires that all government searches and seizures be reasonable
- 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
FOURTH AMENDMENT APPLIES WHEN;
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
THE JONES ANALYSIS;
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)
- the individual must have exhibited an actual (subjective) expectation of privacy
- that expectation must be one that society is prepared to recognize as reasonable
Fourth Amendment
THE KATZ ANALYSIS;
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
PLAIN VIEW DOCTRINE;
Beneath the skin, internal evidence (blood, etc.)
External evidence (fingerprints, handwriting, or voice samples) are lawful seized from suspect
Fourth Amendment
THE BODY; COMMON SEARCH AREAS;
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
VEHICLES; COMMON SEARCH AREAS;
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
HOMES; COMMON SEARCH AREAS;
Under Katz, has REP, which do not reveal their contents (not see through)
Fourth Amendment
CONTAINERS; COMMON SEARCH AREAS;
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
CURTILAGE AND OPEN FIELDS; COMMON SEARCH AREAS;
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
GOVERNMENT WORKPLACES;
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
ABANDONED PROPERTY;
REP only of first class and higher mail sent through the USPS
No REP outside of the letter or package
Fourth Amendment
MAIL;
Does not intrude into REP, unless dog jumps on person
Fourth Amendment
CANINE SNIFFS;
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
SENSORY ENHANCEMENTS;
Overflights to detect criminal activity is common in law enforcement
Must operate in FAA regulations airspace
Fourth Amendment
AIRCRAFT OVERFLIGHTS;
Tracking devices count as REP of their physical movements, need a search warrant
Fourth Amendment
CELL SITE LOCATION INFORMATION;
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
POLICE-CITIZEN ENCOUNTERS;
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
VOLUNTARY CONTACTS;
Must have reasonable, articulable suspicion that criminal activity is afoot and the person detained is somehow involved
Fourth Amendment
TERRY STOPS;
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
TERRY STOP REQUIREMENTS;
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
TERRY STOP - ESTABLISHING REASONABLE SUSPICION;
Heard, saw, or learned that led the officer to reasonably suspect the criminal activity was afoot
Fourth Amendment
TERRY STOP; FACTORS JUSTIFIYING INVESTIGATIVE DETENTIONS;
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
TERRY STOPS; DURATION OF AN INVESTIGATIVE DETENTION;
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
TERRY STOPS - GOING FROM INVESTIGATIVE DETENTION TO ARREST;
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
- the detention leading to the frisk must be lawful
- the officer must reasonably suspect there person is armed/dangerous
Fourth Amendment
TERRY FRISK;
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
TERRY FRISK - FACTORS USED TO JUSTIFY A TERRY FRISK;
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:
- frisk that leads to discovery of the evidence must be lawful
- 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
TERRY FRISK - THE PLAIN TOUCH DOCTRINE;
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
DETAINING VEHICLES;
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
DETAINING VEHICLES - PERMISSIBLE ACTIONS DURING;
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
DETAINING VEHICLES - TERRY FRISK OF A VEHICLE;
Vehicle must be temporary and last no longer than is necessary to carry out the stop’s purpose
Fourth Amendment
DETAINING VEHICLES - DURATION OF VEHICLE STOPS;
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
DETAINING VEHICLES - PRETEXTUAL VEHICLE STOPS;
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
THE USE OF RACE IN LAW ENFORCEMENT;
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
PROBABLE CAUSE;
Totality of the circumstances
Fourth Amendment
THE TEST FOR PROBABLE CAUSE;
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
ESTABLISHING PROBABLE CAUSE;
Aguilar Test
- credibility of the informant
- 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
USING CONFIDENTIAL INFORMANTS TO ESTABLISH PROBABLE CAUSE;
Rejected the Aguilar test and adopted the Gates approach of totality of the circumstances to determine probable cause
Fourth Amendment
USING CONFIDENTIAL INFORMANTS TO ESTABLISH PROBABLE CAUSE; THE EFFECTS OF GATES ON AGUILAR;
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
THE EXCLUSIONARY RULE;
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
NO STANDING TO OBJECT; EXCEPTIONS OF THE EXCLUSIONARY RULE;
When falsely testifies
Exception, the government may use illegally obtained evidence to impeach
- a defendant’s testimony on direct examination
- a defendant’s statement sin response to proper cross-examination
Fourth Amendment
IMPEACHMENT; EXCEPTIONS OF THE EXCLUSIONARY RULE;
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
GOOD FAITH; EXCEPTIONS OF THE EXCLUSIONARY RULE;
Exception requires that LEO’s be actively pursuing an alternative investigation at the time the constitutional violation occurred
Fourth Amendment
INEVITABLE DISCOVERY; EXCEPTIONS OF THE EXCLUSIONARY RULE;
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
FEDERAL ARREST WARRANT;
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
EXECUTING ARREST WARRANTS;
Three requirements for a lawful arrest
- Probable cause
- Arrest authority
- A lawful right to access to the suspect
Fourth Amendment
ARREST; ARREST AUTHORITY;
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
ARREST; ENTERING THE SUSPECTS HOME TO MAKE AN ARREST;
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
ARREST; ENTERING A THIRD-PARTY’S HOME TO MAKE AN ARREST;
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
WARRANTLESS ARREST - FELONIES;
WARRANTLESS ARREST - MISDEMEANORS;
