FOURTH AMENDMENT

Question 1

Fourth Amendment

Answer 1

The Fourth Amendment prohibits unreasonable search and seizures conducted by the government or its agents. To properly assert a Fourth Amendment violation, the defendant must demonstrate (1) government conduct and (2) standing.

Question 2

Fourth Amendment (1) Government Conduct

Answer 2

The Fourth Amendment provides protection exclusively against actions taken by the government or its agents.

Question 3

Fourth Amendment (2) Standing

Answer 3

To assert a Fourth Amendment violation, the defendant must prove that he had a reasonable expectation of privacy as to the places searched and the items seized by the government.

Question 4

Locations Searched - Home

Answer 4

One always has a reasonable expectation of privacy in places in which he resides, owns, possess, or is staying as an overnight guest

Question 5

Locations Searched - Curtilage

Answer 5

A reasonable expectation of privacy exists in the curtilage, which is the area immediately surrounding the home. The following factors are used to determine whether an area is within the home’s curtilage: (i) proximity to the home, (ii) whether it is included within an enclosure surrounding the home, (iii) the nature of the uses to which it is put, and (iv) steps taken by the resident to protect the area from observation by passersby.

Question 6

Locations Searched - Open Fields

Answer 6

A reasonable expectation of privacy does not exist in private property outside the curtilage of the home even if the owner has enclosed the area by a fence, protected the area from public view, and posted “No Trespassing” sings.

Question 7

Locations Searched - Business Premises

Answer 7

One generally has a reasonable expectation of privacy in his business premises, but these premises may be subject to administrative searches

Question 8

Locations Searched - Prison

Answer 8

No reasonable expectation of privacy exists in an inmate’s prison cell, which may be routinely searched. An inmate’s person may be subject to a strip search or a full body search following a contact visit

Question 9

Locations Searched - Automobile

Answer 9

One has a lesser expectation of privacy in a car than in a home. Police may stop a car based on a reasonable suspicion that a law has been violated.

Question 10

Overheard Conversations

Answer 10

There is no reasonable expectation of privacy in conversation that can be naturally overheard

Question 11

Government Informants - Informants and Undercovers

Answer 11

No reasonable expectation of privacy exists in conversations had with government informants or undercover police officers

Question 12

Government Informants - Wiretapping and Recorded Calls

Answer 12

No reasonable expectation of privacy exists in conversations where one party to a telephone call has consented to wiretapping or recording the call upon the government’s request

Question 13

Government Informants - Third-Party Disclosure

Answer 13

No reasonable expectation of privacy exists in information knowingly shared with third parties who may disclose the information to the government either voluntarily or upon the government’s compulsion.

Question 14

Inherently Public Objects and Characteristics

Answer 14

No reasonable expectation of privacy exists in inherently public objects or characteristics

Question 15

Search

Answer 15

A search occurs when the government’s conduct violates an individual’s reasonable expectation of privacy. A search must be reasonable and made pursuant to a valid warrant unless a warrant exception applies

Question 16

Search Methods - Fly Over

Answer 16

An inspection from at least 400 feet in the air does not constitute a search.

Question 17

Search Methods - Ladders

Answer 17

Using ladder to view contents within locations that are protected by a reasonable expectation of privacy does not constitute a search

Question 18

Search Methods - Technology

Answer 18

The use of technology or sense-enhancing devices constitutes a search if the type of technology is not used by the general public and its use helps the government obtain information that would not have otherwise been accessible

Question 19

Search Methods - Canine Sniff

Answer 19

Using a canine to sniff for drugs is a search if the officer trespasses on another’s property, where a reasonable expectation of privacy exists, to conduct the inspection. However, absent such an intrusion, a canine sniff does not constitute a search.

Question 20

Search and Arrest Warrant

Answer 20

The Fourth Amendment protects the people against unreasonable searches and seizures absent a warrant based on probable cause

Question 21

Validity of a Search Warrant

Answer 21

To be valid, a search warrant must (1) be issued by a neutral and detached magistrate, (2) to be based upon probable cause, and (3) describe with reasonable particularity the place to be searched and the things to be seized

Question 22

Knock and Announce Rule

Answer 22

When executing a warrant, police officers must knock and announce their presence and purpose then wait a reasonable amount of time for the inhabitants to let them inside the premises before entering on their own accord.

Question 23

Knock and Announce Rule - Exception

Answer 23

Police officers are not required to follow the knock and announce rule under exigent circumstances or if they have reasonable suspicion that announcing their presence would be dangerous, futile, or allow for the destruction of evidence

Question 24

Good Faith Exception to an Invalid Warrant

Answer 24

Evidence obtained pursuant to an invalid warrant will not be excluded if the police officer acted in good faith reliance as measured by a reasonable person standard

Question 25

Warrant Exceptions

Answer 25

Warrantless searches are unlawful unless a warrant exception applies

Question 26

Warrant Exceptions - Stop and Frisk - Terry Stop

Answer 26

A police officer can stop a person if he has reasonable suspicion, based upon articulable facts, that the person is engaged in criminal activity. The stop must be no longer than necessary to verify or dispel the suspicion.

Question 27

Warrant Exceptions - Stop and Frisk - Frisk of Persons

Answer 27

Once a police officer has lawfully stopped a person, he may conduct a protective frisk for weapons upon reasonable suspicion that the person may be armed.

Plain Feel Exception - During the frisk, if the police officer develops a reasonable belief that an item he feels is a weapon or contraband, he may seize that item. However, the contraband nature of the item must be immediately obvious. The officer may not manipulate the item to develop reasonable belief.

Question 28

Warrant Exceptions - Stop and Frisk of Automobiles

Answer 28

A police officer may stop a car upon reasonable suspicion that a traffic violation has occurred. Upon a lawful stop, if the officer has reasonable suspicion that there is a weapon inside the vehicle, he may frisk the areas of the passenger compartment where weapons may be placed or hidden. If his reasonable suspicion rises to the level of probable cause that a crime is being or has been committed, he may arrest the suspect and conduct a full search of the vehicle.

Question 29

Warrant Exceptions - Search Incident to Lawful Arrest

Answer 29

Once the police have lawfully arrested a suspect, they may conduct a contemporaneous search of the arrestee to find concealed weapons or prevent the destruction of evidence.

Scope of Search

• Person - the police may search the arrestee’s person and wingspan
• Homes - if the person is arrested at home, police may search the arrestee’s wingspan as well as conduct a protective sweep of the areas outside the arrestee’s wingspan where it is possible that an accomplice may be hiding
• Automobiles - if the arrestee was a recent occupant of a car, the police may search the car only if the arrestee is unsecured and within reach of the passenger compartment act the time of the search or the police reasonably believe that evidence of the crime may be contained therein

Question 30

Warrant Exceptions - Automobile Exception

Answer 30

When the police have probable cause to believe that an automobile contains contraband, they may search the entire vehicle including the trunk and all containers in the car where the contraband might be.

Question 31

Warrant Exceptions - Plain View

Answer 31

Police may seize evidence in plain view if (1) they are lawfully in the location from which the evidence is observed, (2) the contraband nature of the evidence is immediately apparent, and (3) they may lawfully access the item

Question 32

Warrant Exceptions - Exigent Circumstances

Answer 32

Police may conduct a warrantless search and seizure based upon probable cause that immediate action is required to (i) administer emergency aid, (ii) prevent the destruction of evidence, or when in (iii) hot pursuit of a fleeing felon

Question 33

Warrant Exceptions - Consent

Answer 33

A warrant is not required when an individual with actual or apparent authority consents to the search. Consent must be voluntarily given, intelligently made, and cannot be predicated on threats of harm, duress, or coercion.

The consenting party may expressly limit the scope of the search in any way and may withdraw consent at any time

Question 34

Warrant Exceptions - Consent- Shared Property

Answer 34

A co-occupant may consent to a search of property shared with the defendant, depending on whether the defendant is present during the search. If the defendant IS present and objects to the search, the co-occupant’s consent is invalid. If the defendant IS NOT present, the co-occupant’s consent will be valid, even if he did not have the authority to consent, as long as the police had a reasonable belief authority existed

Question 35

Seizure of Persons

Answer 35

A seizure of a person occurs when a reasonable person would not feel free to leave

Question 36

Arrest Warrant Requirements

Answer 36

An arrests warrant is issued by (1) a neutral and detached magistrate, (2) based upon probable cause (3) that a crime has been committed by the person identified in the warrant.

Question 37

Arrest Warrant Requirements - Arrest Within Arrestee’s Home

Answer 37

An arrest warrant is mandatory when arresting a suspect within his home, unless exigent circumstances or valid consent exists. If the police have reasonable belief that the arrestee is home, they may enter to execute the arrest warrant.

Question 38

Arrest Warrant Requirements - Arrest Within Third Party’s Home

Answer 38

To arrest a suspect within a third party’s home, the police must obtain an arrest warrant for the suspect, and a search warrant for the third party’s home, unless exigent circumstances exist, or the third party validly consents.

Question 39

Warrantless Arrests - Public Place

Answer 39

A warrant is not required to arrest a suspect in a public place.

Felonies Outside Officer’s Presence - If a police officer has probable cause to believe that a felony has been committed outside his presence, he may effectuate a warrantless arrest.

Felonies and Misdemeanors Within Officer’s Presence - If a felony or misdemeanor is committed within a police officer’s presence, he may effectuate a warrantless arrest.

Question 40

Warrantless Arrests - Police Checkpoints

Answer 40

Police checkpoints are lawful if they are (1) non-discriminatory in execution and for (2) an articulable purpose other than an investigation of criminal activity.

Question 41

Exclusionary Rule

Answer 41

Evidence gathered in violation of the defendant’s Fourth, Fifth, or Sixth Amendment rights as well as derivative evidence known as fruit of the poisonous tree may not be introduced at trial as proof of guilt unless an exception to the rule applies.

Question 42

Exclusionary Rule Exceptions - Inevitable Discovery

Answer 42

The Exclusionary Rule does not apply to evidence that would have been inevitably and lawfully discovered, regardless of the illegal manner in which it was obtained.

Question 43

Exclusionary Rule Exceptions - Independent Source

Answer 43

The Exclusionary Rule does not apply to the legal discovery of evidence through an independent source.

Question 44

Attenuation of the Taint

Answer 44

The exclusionary Rule does not apply when the causal connection between the government’s illegal activity and the evidence offered at trial has been attenuated.

Question 45

Exclusionary Rule Exceptions - Good Faith Reliance

Answer 45

If police conduct a search or arrest pursuant to a warrant that is found to be defective, the evidence obtained as a result is admissible if police relied on the warrant in good faith.

Invalid Reliance - the good faith exception does not apply when (i) the warrant is so deficient in particularity or probable cause that no reasonable police officer could have relied on it in good faith, (ii) the issuing magistrate was biased, or (iii) the warrant was secured through fraudulent means