Fourth Amendment Flashcards
Warrant Requirements
• Probable Cause
• Particularity
Describe place to be searched
What will be seized
• Neutral & Detached magistrate
• Reasonableness in ExecutionAnticipatory Warrant
Need requirements of warrant plus:
- PC to believe that the triggering event will occur
o (e.g. the package will be delivered to the house) - PC to believe that, once the triggering event occurs, the evidence will be found in the specified location
Affidavit
Affidavit is an exhibit attached to warrant that shows PC
Frank’s Test: What it is
Franks - an affidavit supporting a search warrant is presumed valid. Falsehood or intentionally recklessness in Warrant of Search of home
Frank’s Test: Elements
An affidavit is presumed valid unless ∆ makes Substantial Preliminary showing of:
- Falsity in affidavit
- Falsity intentionally/ reckless included in affidavit
[Hard to get this, either make cop or buddy admit falsity] - False / reckless statement necessary to magistrate’s finding of PC
Procedure:
- If judge finds allegations of falsity justified, strikes the false info from affidavit and retest for PC
- If no PC without the tainted info, motion to suppress granted
Levels of Seizure
- Not seized – No Suspicion
- Terry seized - RS
- Arrest - PC
Terry Stop
Brief investigatory stop is justified by RS that criminal activity is afoot.
[RS] = A reasonable person would not feel free to leave; but the duration is otherwise brief, on the spot, diligent
Note:
o If ∆ seized, do officers have RS to justify seizure, or is 4th A implicated
Terry Frisk
Light Frisk of the outer clothing is justified by RS of guns, knives, clubs or other hidden instruments for the assault of the PO
RS = “armed and presently dangerous”
Note: Carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him
Probable Clause: General Rule
Requires a “fair probability”, determined by a totality of the circumstances (which includes veracity (accuracy/truthfulness) and basis of knowledge)
• Detail -> Basis of knowledge
• Veracity -> Corroboration
Note:
• Deficiency in 1 prong can be made up for by a high showing in the other
Probable Cause: to Arrest
There must be a certain quantum of likelihood that the particular individual has committed or is committing a particular offense.
Probable Cause: to Search
To search an area demands that there be a certain quantum of likelihood that something that is properly subject to seizure by the government (contraband or fruits, instrumentalities, or evidence of a crime is presently in the specific place to be searched.
Probable Cause: Definition of Quantum of Liklihood
A fair probability [less than 50%]
o [Is not preponderance of evidence or beyond reasonable doubt]
• Below these
• Above reasonable suspicions
SILA: Search Incident to Lawful Arrest
“A custodial arrest of suspect based on PC is a reasonable intrusion under the 4th Am; that intrusion being lawful, a search incident to arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search”
Plainview Doctrine:
Warrant Exception that Requires
• Lawful presence
• Lawful access
• Immediately apparent item is seizable (i.e., PC to seize the item is immediately apparent
Horton Case
o No longer requires inadvertent discovery of item
o An officer can now have certainty of item to be discovered even if it is not on warrant
Fourth Amendment: Reasonableness Clause
The right of the people to be secure in their:
• Persons
• Houses
• Papers
• And effects
against unreasonable searches and seizures shall not be violated
Fourth Amendment: Warrant Clause
and no warrant shall issue,
• but up probable cause suppurated by Oath or affirmation
• and particularly describing
o the place to be searched
o and the things to be seized
Exclusionary Rule:
Exclude evidence obtained in violation of the Constitution
• Rationale = Deterrence
Search: 2 - Part Privacy test determining if there is a search [Katz Conccurence]
Search: 2 - Part Privacy test determining if there is a search
- Subjective expectation of privacy of ∆
- That is objectively reasonable by society
Note: If you knowingly expose information to the public, you have no reasonable expectation of privacy.
• Pen register (device that collects numbers dialed by a person, placed by phone co.)
• False friend / Conversations with informants
Curtilage: What it is
Area surrounding a home, which extends to the intimate activity associated with the sanctity of a man’s home and the privacies of life
Curtilage: Four Factors in Determining if Protected
- The proximity to the home of the area claimed to be curtilage to the home
- Whether the area is included within an enclosure surrounding the home
- The nature of the uses to which the area is put
- Precautions taken to exclude others from the area
Curtilage: 400 Feet Airspace
This is the reasonable airspace used by the public that will not constitute a search in terms of curtilage
Curtilage Analysis
- Is it curtilage?
- Is it a search? Trespass?
- Was search reasonable?
Probable Cause: Quantum of likelihood
Fair Probability:
- Veracity [corroboration]; or
- Basis of knowledge [detail]
Veracity
Provide the underlying circumstances that show the information is credible and the informant’s information is reliable (corroboration)
SILA: Justifications
- Officer safety / Get weapons
- Destroy evidence
Note: Officers do not need to decide whether or not they have those reasons, and allow them to act
SILA - Wingspan Test
Permits to search of person and what’s within arrestee’s person and the area within his immediate control
• Room in which you are arrested is the area within your immediate possession or control
Knock and Announce: Exception
Police do not need to always Knock and Announce in certain situations (Reasonable Suspicion)
o 1. Destroy evidence
o 2. Place them in peril (threat of physical violence)
o 3. Hot pursuit (fleeing felon exigency)
Reasons need to be proven based on individual facts of the case
Exigency - Warrant Exception: Do not need a warrant if:
- PC to search and
2. Exigency
Types of Exigencies
i. Hot Pursuit (aka Fleeing Felon): Chase felon, in constant continuous visual contact
ii. Public Safety
iii. Destruction of Evidence
iv. Emergency aid / Community Caretaking
1. “Just some reasonable basis that some one is in need of help”
a. May not require probable cause
b. Very person trying to help can say no and officers can still help
Automobile (Warrant) Exception
Requires: Probable Cause to Search
Allows:
o Car is currently in transit;
o Car is objectively mobile and accessible to public roads (even if doubles as a home)
o Permits officers to search the car at stationhouse
• Note: Officers may not indefinitely delay
o Not currently in transit
(however maybe not allowed if on your own curtilage)
o Can search containers if PC to search containers
Inventory Search of a Car: Requires
Step 1:
o Proper impoundment of car
o Lawful arrest and incarceration of the individual
Step 2:
Standard Inventory procedures: Scope of Search
o Where vandals would have ready and unobstructed access once inside the car
o Where the standard procedures say cops may look
Note: Some flexibility / discretion is permissible
Consent Search
Must be voluntary under a totality of the circumstances; whether a person knows he may refuse is just one of those circumstances
Scope is limited to what a reasonable person would have understood by the consent
Third party may consent if she has common authority; mutual use/joint access for most purposes (Matlock)
Third party may consent if she has apparent authority [reasonable person to believe that person possess common authority]
No trumps yes if the no is physically present & actually objecting (Randolph)
Note: new case, if arrested (not for the sake of getting consent) and Yes given later, then Yes trumps no
Third Party Consent: An officer may rely on a third-party’s consent when that person possess:
- Actual common authority; or
2. Apparent authority (reasonable person to believe that person possess common authority)
Seizure: Definitions
- Free to leave?
- Free to decline the officer’s request or otherwise terminate the encounter?
- By means of physical force or show of authority to restrains the liberty of a citizen
- Slightest application of physical force
Reasonable Suspicion:
Consider the totality of the circumstances of each case
Officers may draw on their own experiences and specialized training to make inferences that might well elude an untrained person
Buie Sweep:
Trigger:
o Spaces immediately adjoining place of arrest can be searched
o Reasonable Suspicion of (see below)
Scope
o Where people can be hiding
Rationale:
o Those hiding other people pose dangerous threat
Balancing Test: 3 Parts
[When no warrant]
- Gov interest
- ∆ interest
- Nature of intrusion/ whether its tailored to gov interest at stake
[Used in school settings and other settings]
Check Points:
Unconstititional:
o Roving
o Fixed for general crime control (e.g., Drug searches)
Constitutional o License and registration o Drunk driving o Border o Seeking information from public about a crime committed by another person (in vicinity)
Suspicionless searches: Constitutional
• Drug testing RR employees after major accidents
• Drug testing student athletes
• Drug testing students in extracurricular
• Routine border searches
o Non routine if particularly invasive
• DNA swab of arrestee – minimally intrusive
Suspicionless searches: Unconstitutional
- Drug testing politicians
* Drug testing pregnant women
Reasonableness: Higher Standard
Higher Standard when a person’s health or welfare is jeopardized by police action
- Seizures: cant shoot dead, ultimate seizure
- Searches: Surgery of unknown intrusiveness when gov. case already strong, despite PC and adversarial evidentiary hearing
