Fourth Amendment

Question 1

What is the primary remedy for unreasonable search and seizure?

Answer 1

The “exclusionary rule,” which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. This remedy is judicially created, not constitutionally mandated.

The remedy provided by the exclusionary rule generally applies to criminal trials; it does not apply in other court proceedings, including federal habeas corpus review of state convictions, grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings, and proceedings to revoke parole, or to civil proceedings.

Evidence will also not be excluded at trial when introduced as impeachment evidence against the defendant.

Question 2

What standard of review is used for a pretrial motion to suppress?

Answer 2

The judge, not the jury, resolves suppression issues raised by a pretrial motion to suppress. A pretrial motion to suppress often involves a mixed question of fact and law. On appeal, the judge’s rulings as to questions of law are reviewed de novo; factual findings are reviewed only for clear error.

Question 3

What constitutes a seizure of a person?

Answer 3

A person is seized by the police when the officer physically touches a subject/uses physical force (grabbing suspect by the arm, blocking ability to move, shooting a suspect, ramming a suspect’s car in an attempt to stop the car) or when the subject submits to the officer’s show of authority (showing a badge and saying, “Stop!”). The application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.

When the actions of the police do not show an unambiguous intent to restrain or when the individual’s submission to a show of governmental authority takes the form of passive acquiescence, a seizure occurs only if, in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave. The test is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.

Question 4

What constitutes a “stop” (non-traffic stop)?

Answer 4

A temporary detention for the purpose of a criminal investigation. The test for a stop is whether the officer, by means of physical force or show of authority (to which the subject has submitted), has in some way restrained the liberty of the citizen.

This is a “stop,” not an arrest, but is still a seizure for Fourth Amendment purposes.

Seizure includes physical restraint or an order to stop so that the officer can frisk and ask questions on the street.

Question 5

An arrest made pursuant to a warrant that failed to satisfy the probable cause requirement is not illegal when ___.

Answer 5

the officer making the arrest independently had probable cause for making the arrest

Question 6

Is a warrant required:

a) to search a home?
b) for an arrest in a public place?

Answer 6

a) generally yes, absent exigent circumstances or valid consent to enter the arrestee’s home
b) no

Question 7

Is a warrant required:

a) to make an arrest if either a felony or a misdemeanor is committed in the arresting party’s presence?
b) to make an arrest if a felony has been committed outside the arresting party’s presence?
c) to make an arrest if a misdemeanor has been committed outside the arresting party’s presence?

Answer 7

a) No. The test is whether an officer could conclude—considering all of the surrounding circumstances—that there was a substantial chance of criminal activity.
b) Depends. A police officer may arrest anyone whom he has probable cause to believe has committed a felony, but a private individual may make an arrest only if (i) a felony has actually been committed and (ii) the private individual reasonably believes that the person being arrested is guilty.
c) Yes. Probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest.

Question 8

Will a voluntary confession made after an unlawful arrest be suppressed?

Answer 8

Not automatically, but the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary.

Question 9

Does the Fourth Amendment apply to:

a) arrests by private citizens?
b) searches by private citizens?

Answer 9

a) ?
b) No. However, the police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

Question 10

When is a search or seizure subject to Fourth Amendment protections?

Answer 10

Only unreasonable searches and seizures are subject to Fourth Amendment protections.

An unreasonable search occurs when the government

(1) invades a place protected by a reasonable expectation of privacy, or
(2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information.

EXAM NOTE: Be aware of fact patterns that involve an individual with no expectation of privacy, such as when incriminating evidence is seized at another individual’s home. Remember that the government’s action is valid unless there is a legitimate expectation of privacy or the government trespassed upon the defendant’s private property.

Question 11

What is “curtilage” and what is the test for whether it is protected?

Answer 11

In addition to the home itself, an area immediately surrounding the home known as the “curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment protection.
In determining whether the area is protected, the following four-factor test applies:
i) The proximity of the area to the home;
ii) Whether the area is included within an enclosure surrounding the home;
iii) The nature of the uses to which the area is put; and
iv) The steps taken by the resident to protect the area from observation by passersby.

Question 12

What is the “open fields” doctrine?

Answer 12

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the home’s umbrella of Fourth Amendment protection. Under the “open fields” doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and “no trespassing” signs are posted.

Question 13

Does a reasonable expectation of privacy exist with respect to:

a) a house one is staying in as an overnight guest?
b) another’s home, used briefly for an illegal business purpose?
c) a motel room?
d) a prison cell?
e) business premises?

Answer 13

a) yes
b) no
c) yes
d) not for an inmate, maybe for a detainee
e) yes

Question 14

There is a [greater/lesser] expectation of privacy with regard to the automobile and its contents than with a home.

Answer 14

lesser

Question 15

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if ___.

Answer 15

the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not

Question 16

Police may generally not stop an automobile, even for a driving-related matter, without ___, unless ___.

Answer 16

a reasonable, individualized suspicion of a violation of the law; the stop is effected on the basis of neutral, articulable standards

Question 17

What burden of proof is required to:

a) conduct a stop-and-frisk/Terry stop?
b) arrest the person?
c) convict the person?

Answer 17

a) reasonable suspicion (based on articulable facts, to believe the suspect is or is about to be engaged in criminal behavior)
b) probable cause (more likely than not)
c) beyond a reasonable doubt

Question 18

During a Terry Stop, can an officer:

a) pat-down a detainee for weapons?
b) frisk for weapons?
c) make an arrest?

Answer 18

a) Yes. If the pat down reveals objects whose shape makes their identity obvious, the officer can seize those objects (i.e., it’s obvious that the objects are contraband).
b) Yes, if probable cause develops during the Terry Stop

Question 19

Consequences of a stop that is not based on adequate suspicion:
• If the initial stop is unlawful, but the officer develops the basis for a lawful arrest during the stop, evidence seized during the arrest _______________ be used at trial
• If the arrest is unlawful, evidence seized during the arrest _________________ be used at trial

Answer 19

• can

* cannot

Question 20

Officers must have ___ to stop a car. Two exceptions?

Answer 20

reasonable suspicion, unless:
• it’s a checkpoint and they pull over everyone
• it’s at the border and the purpose of the stop relates to the enforcement of immigration laws

Question 21

Is a conversation subject to protection by the Fourth Amendment?

Answer 21

Yes, but there is no reasonable expectation of privacy in conversations carried on with government informants or undercover officers.

Question 22

Is DNA identification of arrestees a reasonable search?

Answer 22

Yes, like fingerprinting and photographing

Question 23

Do blood samples require warrants? What about breach samples?

Answer 23

Generally, blood samples require warrants, but breath samples do not. (The involuntary, warrantless blood test of a drunken-driving suspect was appropriate when police could reasonably have believed that the delay necessary to obtain a search warrant would likely result in disappearance of the blood-alcohol content evidence.)

However, the reasonableness of a warrantless blood test is determined case by case, based on the totality of the circumstances. The Fourth Amendment mandates that police officers obtain a warrant before a blood sample can be drawn, if they can reasonably do so without significantly undermining the efficacy of the search.

When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine (discussed infra) generally permits a blood test without a warrant.

Question 24

Which of the following constitutes a search (i.e., violates a reasonable expectation of privacy)?

a) An inspection conducted from the air, whether by an airplane or a helicopter
b) Use of a trained dog to sniff for the presence of drugs

Answer 24

a) No, if it’s at least 400 feet in the air
b) Only if it involves a physical intrusion onto constitutionally protected property. In the absence of a physical intrusion, the use of drug-sniffing dogs does not violate a reasonable expectation of privacy.

Question 25

Which of the following constitutes a search (i.e., violates a reasonable expectation of privacy)?

a) Attaching a tracking device to a person’s body without consent
b) Collecting cell-site location information records from wireless carriers in order to track a suspect’s whereabouts
c) Police surveillance equipment
d) Use of an electronic listening device to eavesdrop on a conversation made from a public phone booth

Answer 25

a) yes
b) yes
c) generally no (e.g. license plate search computer), but maybe if it’s physically installed by intruding on suspect’s property, like attaching a tracking device to a car. Also:
The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search.
d) possibly

Question 26

What is a pretext arrest and how is it treated under the Fourth Amendment?

Answer 26

Pretext arrest: As long as the police have probable cause to believe an individual
committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is probable cause or some other crime.

Pretext arrests are fine under the Fourth Amendment. However, there may be an Equal Protection issue if the officers choose who to stop based on race or other discriminatory criteria.

Question 27

What are the requirements for a search warrant?

Answer 27

A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized.

A search warrant must describe with particularity the place to be searched and the objects to be seized.
Warrants that, in addition to describing specific documents to be seized, also refer to “other fruits, instrumentalities and evidence of the crime at this [time] unknown” are OK. The reference to a “crime” has been interpreted as being limited to a particular crime (e.g., false pretenses), rather than any crime.

Question 28

Facts supporting probable cause may come from which sources?

Answer 28

i) A police officer’s personal observations;
ii) Information from a reliable, known informant or from an unknown informant that can be independently verified; or
iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches.

Question 29

When can a defendant challenge a facially valid warrant?

Answer 29

Only when the defendant can establish, by a preponderance of the evidence, that:

i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and
ii) The false statements were necessary to the finding of probable cause.

Question 30

Courts use what test to determine whether information provided by a police informant is sufficient to create probable cause?

Answer 30

the totality of the circumstances test

Question 31

A search warrant [may/may not] be issued to search the premises of a person who is not suspected of a crime.

Answer 31

may

Question 32

What is the knock-and-announce rule?

Answer 32

Most states and the federal government mandate that a police officer, when executing either a search or an arrest warrant, must generally announce his purpose before entering. The knock-and-announce rule gives individuals the opportunity to comply with the law, to avoid the destruction of property occasioned by a forcible entry, and to collect themselves with dignity before answering the door (and to protect officers and the inhabitants of the building from surprised self-defense).

Question 33

What are the seven major exceptions to the warrant requirement?

Answer 33

o Exigent circumstances
o Search incident to arrest
o Consent
o Automobiles
o Plain view
o Evidence obtained from administrative searches 
o Stop and frisk

Question 34

What is the “search incident to a lawful arrest” exception to the warrant requirement? What is the test?

Answer 34

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. If the arrest is invalid, any search made incident to it is likewise invalid. Therefore, if a suspect is stopped for a traffic offense and given a citation but not arrested, then there can be no search incident to lawful arrest.

Chimel standard: A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area (i.e., his “wingspan”) from which a weapon may be concealed or evidence destroyed.

A search incident to a valid arrest must take place contemporaneously with the arrest in order to be valid.

The right to search incident to a lawful arrest includes the right to search shoulder bags, purses, or pockets of clothing, and to open containers found inside the pockets.

Absent exigent circumstances, police must obtain a warrant before searching digital information of a person arrested.

Question 35

What is the “vehicle search incident to a lawful arrest” exception to the warrant requirement? What is the test?

Answer 35

the Fourth Amendment requires that law enforcement demonstrate either

(i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or
(ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

A legally impounded vehicle may be searched, including closed containers, such as glove box or a backpack, as part of a routine inventory search.

Question 36

What is the “exigent circumstances” exception to the warrant requirement? What is the test?

Answer 36

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances. In determining the existence of exigent circumstances, courts use the “totality of circumstances” test.

Officers are entitled to secure premises (i.e., prevent people from moving things) while they obtain a warrant.

1) If officers are in “hot pursuit” of a suspect they have probable cause to believe has committed a felony, they may enter a private building and conduct a search without getting a warrant first. (If it’s a misdemeanor, the totality of the circumstances must show an emergency.) No such exigency exists in pursuing someone suspected of a nonjailable traffic offense; the hot-pursuit exception is inapplicable in that instance.
2) A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction or the threatened safety of the officer or the public, or when a suspect is likely to flee before a warrant can be obtained.

This exception does not apply when police create the exigency.

Question 37

What is the “stop-and-frisk” exception to the warrant requirement? What is the test for the stop? What is the test for the frisk (and exception)?

Answer 37

Stop: A stop (i.e. Terry stop) is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in illegal activity. Whether reasonable suspicion exists is based on the totality of the circumstances. It requires more than a vague suspicion, but less than probable cause, and it need not be based on a police officer’s personal knowledge.

Frisk: Limited search of lawfully stopped, such as a pat-down of the outer clothing, allowed if officer has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others (i.e., reasonable suspicion that the person has a weapon).
–Under the “plain feel” exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then the officer may seize the evidence. Police may also briefly seize items if the officers have a reasonable suspicion that the item is or contains contraband.

Question 38

What can support reasonable suspicion in the Terry stop context?

a) a flyer,
b) a police bulletin,
c) an informant’s tip,
d) a police officer’s mistake of law

Answer 38

a) Yes
b) Yes
c) Only if the tip is accompanied by sufficient indicia of reliability
d) Yes, if mistake is reasonable

Question 39

When can police search the passenger compartment for weapons of a car lawfully stopped? When can they frisk the occupants?

Answer 39

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if:

i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and
ii) The search of the passenger compartment is “limited to those areas in which a weapon may be placed or hidden.”

They may only frisk the driver or the passenger if they have reasonable suspicion that the person is carrying a weapon.

Question 40

What is the automobile exception to the warrant requirement? What is the standard? What’s the weird rule about the trunk?

Answer 40

No warrant needed to search a vehicle if police have probable cause to believe that it contains contraband or evidence of a criminal activity. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so.

Note that the automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.

Trunk: Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for. If the police have probable cause to search only a particular container, they may search only that container, and not the entire car. BUT, If police have probable cause to search the trunk, not just a container placed in the trunk, then they can search the entire trunk and every container in the trunk, even if locked.

Question 41

What is the “plain view” exception to the warrant requirement?

Answer 41

Public view: Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public (e.g., physical characteristics, vehicle identification numbers, or items in open fields).

Private view: In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in the search warrant, as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item (e.g., viewing an object through a window is insufficient if the officer does not have lawful access to the inside of the house).

Question 42

What is the “consent” exception to the warrant requirement? What is the test? Who has the burden of proof?

Answer 42

Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search.

Test: In determining whether a person’s response constitutes consent, courts evaluate the totality of the circumstances in which the response is made.

Burden of proof: The prosecution must prove that the permission was freely given; the defendant is not required to show that the permission was coerced.

Exception? Consent based on deceit: A government agent pretending to be a narcotics buyer, for example, may accept an invitation to enter the premises for the purposes contemplated by the occupant (i.e., to purchase drugs). The officer or agent may then seize things in plain view.

Question 43

When can a third party consent to a warrantless search?

Answer 43

Depends on to whom the property belongs.

Third party’s property: Generally, a third party has the authority to consent to a search of property that she owns, occupies, or has control over (landlord doesn’t count).

D’s property: For third party to consent to search of D’s property, an agency relationship or assumption of the risk must apply.

Jointly controlled property: Depends on whether the D is present at the time of the search.

• -not present: third party authorized to consent (apparent consent may count)
• -present: police may not rely on third-party consent if the D objects to the search

Question 44

What is the standard required for administrative warrants (for nonconsensual fire, health, or safety inspections of residential or private commercial property)?

Answer 44

Probable cause. But the probable cause requirement for administrative searches is less stringent than that for a criminal investigation. Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant.

Question 45

What are warrantless administrative searches? Where are they often carried out?

Answer 45

Used to ensure compliance with various administrative regulations. Examples:
• Airplane boarding areas
• International borders
• Highly regulated industries (liquor stores, gun shops, etc.)
• Searches of students in public schools
• Special needs searches; e.g., drug testing of railroad employees after an accident
• Roadblocks for drunk driving or seeking information

Also:
• Oral statements seized by wiretaps
Inventory searches of items in official custody
• Vehicle checkpoints and roadblocks
• Factory searches of the entire work force to determine citizenship of workers
• Searches of government employees’ electronically recorded documents and conduct, file cabinets, and desks
• Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach
• Searches of parolees and their homes
• Seizure of contaminated or spoiled food
• Searches for the cause of a fire

Question 46

To obtain a warrant authorizing a wiretap, officers must satisfy what requirements?

Answer 46

The warrant must:

i) Be limited to a short period of time;
ii) Demonstrate probable cause that a specific crime has been or is about to be committed;
iii) Name the person or persons to be wiretapped;
iv) Describe with particularity the conversations that can be overheard; and
v) Include provisions for the termination of the wiretap.

Question 47

How does a defendant show standing to establish that a search violated his Fourth Amendment rights?

Answer 47

A defendant must show a legitimate expectation of privacy with regard to the search. To make such a showing, which is sometimes referred to as “standing,” the defendant may have to admit facts that would incriminate him. Consequently, testimony given by the defendant to establish standing cannot be admitted as evidence against the defendant at trial.

Question 48

What is the “exclusionary rule” for Fourth Amendment purposes? What happens on appeal if it is violated by the trial court?

Answer 48

Under the Fourth Amendment, evidence seized during an unlawful search cannot constitute proof against the victim of the search.

Even if the trial court wrongfully admitted illegally seized evidence, the appellate court can refuse to order a new trial if it finds that the error was harmless beyond a reasonable doubt, meaning that the erroneously admitted evidence did not contribute to the result.

Question 49

What is the meaning of “fruit of the poisonous tree”?

Answer 49

Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary “derivative evidence” discovered as a result of the primary taint, also known as the “fruit of the poisonous tree.”

Example: A police officer conducts an unconstitutional search of a home, finds an address book, and uses that address book to locate a witness. The witness will not be allowed to testify, because her testimony would be a “fruit” of the unconstitutional search.

Question 50

What are the exceptions to the exclusionary rule? [4 “INs” + PAKAGE]

Answer 50

1) INevitable discovery rule: The prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means.
2) INdependent source doctrine: The evidence was discovered in part by an independent source unrelated to the tainted evidence.
3) Principle of Attenuation: The chain of causation between the primary taint and the evidence has been so attenuated as to “purge” the taint. Both the passage of time and/or intervening events may attenuate the taint.

4) Good-faith Exception: The good-faith exception applies to police officers who act in good faith on either a facially valid warrant later determined to be invalid or an existing law later declared unconstitutional. Based on the objective good faith of a reasonable police officer.
This exception does not apply if:
i) No reasonable officer would rely on the affidavit underlying the warrant;
ii) The warrant is defective on its face;
iii) The warrant was obtained by fraud;
iv) The magistrate has “wholly abandoned his judicial role”; or
v) The warrant was improperly executed.

5) Isolated Negligence by police: Only triggered by police conduct that is “sufficiently deliberate such that exclusion can meaningfully deter it.” The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or, in some circumstances, recurring or systemic negligence.
6) Knock and Announce: The exclusionary rule does not apply to evidence discovered as a result of a search conducted in violation of the “knock and announce” rule, if the search was otherwise authorized by a valid warrant.
7) IN-court identification: A witness’s in-court identification of the defendant is not fruit of an unlawful detention. Thus, the identification cannot be excluded. On the other hand, live testimony may be excluded as fruit of illegal police conduct if there is a sufficient link between the illegal police conduct and the testimony.

Question 51

What happens when the defendant challenges a confession or the admissibility of evidence under the exclusionary rule?

Answer 51

By right, a hearing is held to determine whether the confession or evidence is fruit of the poisonous tree. This hearing is held outside the presence of the jury. The defendant has a right to testify at this hearing, and the state bears the burden of establishing admissibility by a preponderance of the evidence.

Question 52

Evidence obtained in a manner that shocks the conscience is ___.

Answer 52

Inadmissible. Examples of such methods of gathering evidence include inducements by official actions that offend the sense of justice and serious intrusions into the body, such as with surgery to remove a bullet. Contrast that, however, with a cheek swab to obtain a DNA sample, which is a reasonable intrusion because it is quick and painless, and involves no surgical intrusion beneath the skin.

Question 53

What is the scope of a protective sweep?

Answer 53

If the arrest occurs in a home, it is permissible to conduct a “protective sweep” for confederates (i.e., people who might launch an attack) in spaces immediately adjacent to the place of arrest, even without probable cause or reasonable suspicion. A “protective sweep” allows a quick and limited visual inspection of those places immediately adjacent to the place of arrest in which a person might be hiding (e.g., adjacent rooms, closets, showers). If the officers have reasonable suspicion that confederates are hiding beyond these immediately adjacent areas, they can broaden their search for people in those places too. Maryland v. Buie, 494 U.S. 325, 334 (1990) (finding that after police properly arrested defendant in his home after defendant came up from his basement, the police were permitted to conduct a protective sweep of the basement to ensure their safety).