Fourth Amendment Flashcards
Warrant Requirements
• Probable Cause • Particularity Describe place to be searched What will be seized • Neutral & Detached magistrate • Reasonableness in Execution
Anticipatory 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