Fourth Amendment Flashcards
Custody
in the presence of law enforcement
not free to leave
deprived of his freedom of action in a significant way.
Orozco v Texas
Arrest and Detentions - General Principles
Warrants not required to arrest in public place
US v Watson
Non-Emergency Arrests in a home requires warrant
Arrest
taken into custody
purpose of commencing a criminal action,
arrest occurred.
Dunaway v NY
More than stop and frisk is required.
Brief detentions by police are permissible for
purpose of questioning,
without probable cause.
Approach to Criminal Procedure Questions
- Was there government Action?
- If so, did it trigger a constitutional right?
- If so, did the government violate a constitutional right?
- Is your D entitled to the remedy of exclusion?
Rights of the Constitution incorporation
incorporated to the states through the due process clause of the 14th Amendment.
4th Amendment Applies to
Government Action.
government obtains evidence from PRIVATE party
and seeks to introduce,
4th amendment not triggered.
Only where that party is acting at the direction of the government or pursuant to an official policy. Then the 4th Amendment is triggered and the search must be reasonable.
When is the 4th Amendment Reasonableness requirement triggered?
Any government seizure of person or property
Terry Stop
Brief investigatory seizure.
Police require interaction.
Triggers 4th A requirement of reasonableness.
short of arrest.
Difference is in duration and purpose.
purpose - investigate ‘REASONABLE SUSPICION’ crime has occurred or is about to.
Permissible Duration of a Terry Stop
time necessary to confirm or deny reasonable suspicion.
suspicion confirmed = probable cause = arrest.
denied = seizure must terminate.
For Property to be seized - definition
police action results in a meaningful interference with a possessory interest.
police take property, it is seized.
police place something on property & not interfere with use of the property - not seized.
Search Defined
government intrusion into reasonable expectation of privacy (REP)
or a trespass of the suspects person, home, papers or effects
for purpose of gathering information.
When the government interferes with a reasonable expectation of privacy a person may assert his 4th Amendment rights.
To do so the individual must…
- Manifest a subjective expectation of privacy - making effort to shield the place, thing, or activity from the public.
- expectation is objectively reasonable? An expectation society recognizes.
no REP when objects are held out to the public.
A person knowingly exposes something to the public the police seeing, hearing, or smelling it is not a search.
use of animals; commonly available equipment
enhance natural senses.
NOT a search
so long as what they see, hear, or smell is detected without intruding on a REP
List 10 items where no REP
knowingly exposed to the public
- handwriting exemplars
- voice exemplars
- bank records
- pen registers - dialed phone numbers collected at a public phone
- header information on an email, but not content.
- private conversations between 2 parties where one party allows it to be recorded with his consent.
- open fields - unoccupied areas beyond the curtilage of the home.
- naked eye observations from an aircraft
- discarded property
10 ariel photography even with the use of high powered scopes
Burden on D if Police obtain a warrant
creates presumption of reasonableness.
D bears BoP to show
- warrant not based on probable cause
- magistrate not neutral or detached.
- warrant failed to describe with particularity objects to be seized or place searched.
Admissibility of evidence obtained by INVALID warrant
admissible pursuant to “good faith” exception to the exclusionary rule.
Must be additional determination that police acted unreasonably in reliance on the warrant.
Search without a warrant presumptions
Presumptively unreasonable.
Government has BoP Seizure fell w/i established exception to warrant requirement.
Procedure for issuing a warrant
issued by neutral detached magistrate based on probable cause describes with particularity items to be seized or place to be searched.
Information (affidavit) presented to a magistrate must
Provide relevant facts which conclude
It is MORE PROBABLE THAN NOT
person committed a crime or
evidence is at location.
Information must not be stale.
Warrant Execution
knock and announce prior to entry
not required when REASONABLE SUSPICION doing so would ENDANGER POLICE or lead to the DESTRUCTION of EVIDENCE or FLIGHT OF THE SUSPECT
Violation of the KNOCK and ANNOUNCE rule
violates 4th Amendment but
does NOT trigger the exclusionary rule.
Probable Cause - Defined
Facts and circumstances warranting
reasonable persons to conclude
person committed a crime to support arrest
or items will be found in a particular location.
This is an objective standard
subjective intentions of the police officer play no role
When Probable Cause is ALWAYS required
any full scale intrusion or a
full blown evidentiary search or
an arrest.
How probable cause is often established
Police observation
eyewitness account
forensic evidence
suspects admissions or actions
Probable cause established by an informants tip
Test applied
Totality of the Circumstances Test
assess informants reliability and establish probable cause
- Veracity of the informant - does he have a track record?
- Basis of knowledge - how does informant know suspects activities.
- Police corroborates facts and establish accuracy of prediction.
The Test must indicate information provided is predictive information only a person with inside access would know.
Reasonable Suspicion - Defined
belief based on articulable information
more than a hunch
used by a reasonable person or police officer
indicating suspect has or will engage in criminal activity.
Enables Officer to to a Terry Stop or Terry Frisk ONLY.
A police officer’s subjective suspicion is sufficient to establish…
NOTHING
not objectively reasonable
insufficient to do even cursory search or seizure.
reasonable suspicion must have
a VERIFIABLE OBJECTIVE FACT to support
Arrest made in Public requirements
No warrant so long as probable cause exists.
Arresting an individual in their home
Requires warrant
consent to enter or
exigent circumstances
Exigent Circumstances justifying warrantless entry to execute arrest
- Arrest outside home thwarted by retreat into home.
- delay will allow suspect to evade arrest or destroy evidence.
- hot pursuit and has probable cause
- officer did not create exigent circumstances to avoid obtaining warrant.
Terry Stop Requirements
Reasonable suspicion crime is afoot
justifies a brief investigation or seizure.
Reasonable suspicion is established by
Police observation
eyewitness reports
flight from police in a high crime area
informant tip + police corroborating tip
informant tip and establishing reasonable suspicion
Reasonable suspicion is established by
verifying informants prediction even without indication of insider access.
tip providing nothing more than existing information,
will not establish reasonable suspicion
permissible scope of a Terry Stop
time necessary confirm or deny suspicions
while acting with due diligence
officer can ask suspects name during Terry stop
so long request has immediate relation
to the purpose of the stop.
improper subjective basis stop - not illegal if stop supported
objectively reasonable belief
suspect has engaged in or
was about to engage in criminal conduct.
Seizure of Property Requirements
warrant based on probable or property in plain view.
Plain View Requirements
lawful vantage point to observe.
And
lawful access to the point of seizure.
doctrine is an exception to the warrant requirement
NEVER justifies a WARRANTLESS SEARCH for contraband
Seizure of Person
Government action reasonable person not feel free to leave or terminate police encounter Seizure occurred and 4th amendment triggered.
How can a search or seizure comply with the 4th Amendment
It must be reasonable
