Fourth Amendment

Question 1

What does the Fourth Amendment protect against?

Answer 1

The Fourth Amendment provides that people should be free from unreasonable searches and seizures.

Question 2

Seizure Definition

Answer 2

A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter.

I.e., an arrest

Question 3

Arrest Definition

Answer 3

An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation.

Question 4

Arrest and Probable Cause

Answer 4

An arrest must be based on probable cause

Look at the totality of the circumstances:
Trustworthy facts sufficient for a reasonable person to believe that the suspect has committed an arrestable offense

Question 5

Do you need a warrant to arrest someone?

Answer 5

If in someone’s home, generally yes

If in public, no

Question 6

Detentions at the police station

Answer 6

Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will.

Question 7

Effect of an invalid arrest on prosecution

Answer 7

An unlawful arrest (no PC), by itself, has no impact on any subsequent criminal prosecution. The prosecution can get probable cause later.

Question 8

Define: Terry Stops

Answer 8

The police have the authority to briefly detain a person, even if they lack probable cause, if they have a reasonable suspicion of criminal activity supported by articulable facts.

If the police have reasonable suspicion that the detainee is armed and dangerous, they may also frisk the detainee for weapons

Question 9

What is Reasonable Suspicion?

Answer 9

Reasonable suspicion is more than just vague suspicion but is less than probable cause.

Whether the police have reasonable suspicion depends on the totality of the circumstances.

Question 10

When can the police rely on an informant’s tip?

Answer 10

There must be an indicia of reliability (including predictive information) to be sufficient.

NOTE: Does not NEED to have predictive information, it just can

Question 11

Time limit on investigatory stops

Answer 11

No specific time limit, but the police must act in a diligent and reasonable manner in confirming their suspicions.

Question 12

Property Seizures

Answer 12

BRIEF property seizures are similarly valid if based on reasonable suspicion.

Question 13

When can the police stop a car?

Answer 13

If they have reasonable suspicion that a law has been violated.

Question 14

Police dogs being used at traffic stops

Answer 14

A dog SNIFF is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.

BUT a dog “alert” to the presence of drugs can form the basis for probable cause for a search.

Question 15

Police Officer’s Mistake of Law

Answer 15

This does not invalidate a seizure as long as the mistake was reasonable (i.e., the police officer thought it was the law for cars to have two working brake lights)

Question 16

Other Occupants of the Vehicle During a Traffic Stop

Answer 16

An automobile stop constitutes a seizure not only of the automobile’s driver, but also of any passengers as well.

Passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.

Question 17

Police Roadblocks

Answer 17

Allowed if the purpose for setting up the road block is not to seek incriminating information about the drivers.

To be valid, the roadblock must:
1. Stop cars on the basis of some neutral, articulable standard (for example, every third car), and

2. Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

Question 18

Can the police order the driver and passengers out of the car during a stop?

Answer 18

Yes.

If the officer reasonably believes the detainees are armed, the officer also may frisk the occupants and search the passenger compartment for weapons

Question 19

Pretextual Stops

Answer 19

If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.

Question 20

When Can the Police Detain a Suspect Prior to Obtaining a Warrant?

Answer 20

(1) They have probable cause to believe that a suspect has hidden drugs in their home,

(2) They detain the suspect for a reasonable time

Question 21

Detaining Other Occupants in a Home

Answer 21

A valid warrant to search for contraband allows the police to detain occupants of the premises during a proper search.

Question 22

When can a Police Officer Use deadly force?

Answer 22

If it is reasonable to do so under the circumstances (e.g., where the suspect poses a danger to their own life or the lives of others).

If a police officer uses deadly force to apprehend a suspect, there is a Fourth Amendment “seizure”

Question 23

Approach to Evidentiary Search and Seizure Questions

Answer 23

1) Was there conduct by the government?

2) Does the Defendant have Standing?

3) Was there a valid warrant?

4) If not, does one of the six exceptions to the warrant requirement apply?

Question 24

Requirements of a Valid Warrant

Answer 24

A warrant is valid if it was issued by a neutral and detached magistrate on a showing of probable cause and is reasonably precise as to the place to be searched or items to be seized.

Question 25

When does the Defendant have Standing?

Answer 25

(1) If they had a reasonable expectation of privacy in the item/place searched or seized, or

(2) If the search involve a physical intrusion into a constitutionally protected area

TOTALITY OF THE CIRCUMSTANCES

Question 26

Three Automatic Categories of Standing

Answer 26

Person owned or had right to possess place searched

Place searched is the defendant’s home

Person is an overnight guest of the owner

Question 27

Reasonable Expectation of Privacy in Things Held Out to the Public

Answer 27

A person does not have a reasonable expectation of privacy in objects held out to the public or third parties (e.g., bank account records)

However, a person does have a reasonable expectation of privacy in their cell-site location information

Question 28

Can Probable Cause come from an informant’s information?

Answer 28

Yes, but must meet the “totality of the circumstances” test: The informant’s reliability and credibility or their basis for knowledge

The informer’s identity generally need not be revealed.

Question 29

How can the Defendant invalidate the Affidavit

Answer 29

Defendant must establishes all three of the following:

1) A false statement was included in the affidavit by the officer applying for the warrant

2) The affiant intentionally or recklessly included the false statement, and

3) The false statement was material to the finding of probable cause

Question 30

Anticipatory Warrants

Answer 30

A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued

Question 31

Can a Warrant be Issued to Search the House/Property of a non-suspect?

Answer 31

Yes, if there is probable cause to believe that evidence will be found there

Question 32

Execution of a Warrant

Answer 32

Only the police may execute a warrant

No third parties UNLESS identifying stolen property

Violation of ‘knock-and-announce’ rule will not result in suppression of evidence

Question 33

Search of Persons Found on Searched Premises

Answer 33

Police CAN:
- Detain other occupants during the search

Police CANNOT:
- Search persons found on the premises if unnamed in the warrant
- Follow, stop, detain, and search persons who left the premises shortly before the warrant was executed

NOTE: The police can still perform a Terry Stop of a person unnamed in the warrant.

Question 34

Exceptions to the Warrant Requirement

Answer 34

1. Search incident to a constitutional arrest
2. Automobile Exception
3. Plain View Exception
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Emergency Aid, Risk of Evidence being Destroyed.

Question 35

Warrant Exception: Searches Incident to Arrest

Answer 35

Police can conduct a search after a valid arrest

Police can make a protective sweep of the area

The search must be contemporaneous in time and place with the arrest.

Question 36

What happens to evidence found during a search incident to an invalid (unconstitutional) arrest

Answer 36

If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.

Question 37

What can be searched during a search incident to arrest?

Answer 37

The person and the areas within the person’s wingspan

Question 38

Searches Incident to Arrest: Automobiles

GANT RULE

Answer 38

The police may conduct a search of the passenger compartment ONLY IF at the time of the search:

• The arrestee is unsecured and still may gain access to the interior of the vehicle, or
• The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

Question 39

Searches Incident to a DUI

Answer 39

Gant Rule

Breath Test OK

Blood Test NO

Question 40

Searching a Mobile Phone Incident to Arrest

Answer 40

The physical attributes of a cell phone may be searched, but not it’s data.

Question 41

Inventory Searches

Answer 41

At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure.

Similarly, the police may make an inventory search of an impounded vehicle.

Question 42

Automobile Exception to the Warrant Requirement

Answer 42

If the police have probable cause to believe that a vehicle contains evidence of a crime, they may search the WHOLE vehicle and any container that might reasonably contain the evidence.

NOTE: The probable cause necessary to justify the warrantless search of an automobile can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched.

Question 43

Plain View Exception to the Warrant Requirement

Answer 43

The police may make a warrantless seizure when they (1) are legitimately on the premises, (2) discover evidence of crime that is in plain view, and (3) it is immediately apparent that the item is evidence of crime.

Question 44

Consent Exception to the Warrant Requirement

Answer 44

A warrantless search is valid if the police have a voluntary consent.

Knowledge of the right to withhold consent is not required for voluntary consent.

If the police say they have a warrant, this negates consent (i.e., if the warrant turns out to be invalid, search is invalid even if you did consent at the time)

Question 45

Who may consent to a warrantless search?

Answer 45

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other occupants.

BUT an occupant cannot consent if another co-occupant is present and objects to the search.

If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal, the police may act solely on consent of the remaining occupant to search.

Question 46

Stop and Frisk Definition

Answer 46

A Stop and Frisk (or Terry Stop) is a brief detention for the purpose of investigating suspicious conduct by patting down of the outer clothing and body to check for weapons.

Officer may seize any item that they reasonably believe, based on it’s plain feel, is a weapon or contraband.

Question 47

Standards to Perform a Terry Stop

Answer 47

A police officer may stop a person without probable cause if they have an articulable and reasonable suspicion of criminal activity.

Question 48

Hot Pursuit Exception to the Warrant Requirement

Answer 48

Police in hot pursuit of a fleeing FELON may make a warrantless search and seizure, and may even pursue the suspect into a private dwelling.

BUT if the fleeing person is suspected of a misdemeanor, not always justified to enter their home without a warrant.

Rule of thumb: If the police are not within 15 minutes behind the fleeing felon, exception does not apply

Question 49

Risk of Evidence Being Destroyed (Exception to Warrant Requirement)

Answer 49

Arises when evidence might disappear quickly if the
police took the time to get a warrant.

Question 50

Emergency Aid Exception to the Warrant Requirement

Answer 50

A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public.

BUT the emergency aid exception does not permit an officer to conduct a warrantless search of a person’s home.

Question 51

Searches at the US border (or it’s equivalent)

Answer 51

Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the U.S. border.

Question 52

Is wiretapping or eavesdropping a search?

Answer 52

YES, and therefore requires a warrant

EXCEPTIONS:
Unreliable Ear: Speaker assumes risk other person consents to government monitoring or is an informer. Not for conversations over the phone- basically if someone in real life is wearing a wire, you run that risk.

Uninvited Ear: Speaker has no 4A claim if they make no attempt to keep the conversation private

Question 53

Obtaining Evidence in a Way that Shocks the Conscience

Answer 53

Inadmissible under the Due Process Clause

E.g., Torture