Fourth Amendment Flashcards
What does the Fourth Amendment protect citizens from?
Unreasonable searches and seizures
When does a seizure occur?
When, under the totality of circumstances, a RP would not feel free to decline officer’s request or to terminate the encounter
An arrest must be based on…
Probable cause
What is probable cause?
trustworthy facts or knowledge sufficient for RP to believe suspect committed or is committing crime
When is an arrest W required?
NOT for arresting someone in public place
But for non-emergency arrest of an individual in his home
What do police need to arrest you and compel you to come to the police station either for finger printing or interrogation (station house detention)?
probable cause
but don’t need PC to ASK to come to station
Another word for Terry stop?
Investigatory detentions
To briefly detain a person, what must police have?
- reasonable suspicion of
- supported by articulable facts
- of criminal activity
(hunch is never enough)
PC not necessary
Whether the police have reasonable suspicion depends on….
the totality of circumstances
When may police stop an automobile?
when they have at least reasonable suspicion that the law has been violated
Who has standing to sue for wrongful SEIZURE when car is STOPPED (but not for SEARCH)?
driver AND passengers
When is reasonable suspicion NOT needed to stop a car? (the exception)
checkpoint roadblocks:
- OK so long as neutrally applied (stop every car or every 4th car)
- OK for DUI (but not to check for only drugs) and border crossing
Traffic stops and police dogs: during routine traffic stops, is a sniff by dog a search?
No, so long as police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
Traffic stop and police dogs: What if during a traffic stop, dog alerts to presence of drugs?
Can form basis for PC for a search
What’s needed to search?
PC
Can police use drug sniffing dog directly outside home of suspected drug dealer?
Not w/o PC
Model for search & seizure Q (5 steps)
1) gov’t conduct?
2) REP (as to place searched or item seized)? (this gives you STANDING)
3) police have valid search W?
4) if W invalid, officer have good faith defense to save defective search W?
5) if W invalid AND no good faith defense OR police never had any W at all, EXCEPTIONS to W req?
STEP 1: Gov’t conduct: Whose actions count?
- publicly paid police- on OR off duty
- any private individual acting at direction of public police
- NOT privately paid police unless deputized w/ power to arrest (e.g. of privately paid police: store security guards, subdivision police, campus police)
STEP 2: REP (standing): automatic categories of standing
1) OWN premises searched
2) LIVE on premises searched, regardless of ownership interest (e.g. grandchild living at gparents’ home)
**3) OVERNIGHT GUESTS of owner of place searched
STEP 2: REP (standing): important “sometimes” category
OWN PROPERTY seized (e.g. backpack, purse)
standing ONLY IF D has REP in item or area searched (e.g. you don’t have REP in another person’s person)
STEP 2: REP (standing): no standing categories (5)
No REP and therefore no standing for anything you HOLD OUT TO THE PUBLIC (seizure of these things implicates no right of privacy)
1) sound of VOICE
2) style of HANDWRITING
3) PAINT on outside of car
4) ACCOUNT RECORDS held by bank
5) LOCATION OF YOUR CAR on public street or in driveway (police CAN tail your car)
BUT installation of GPS device on suspect’s car is a search, so need PC and W
6) anything that can be seen across the OPEN FIELDS (anything NOT curtilage, like rural property)
7) anything that can be seen from flying over in PUBLIC AIRSPACE
8) ODORS emanating from luggage or car
9) GARBAGE set out on CURB for collection
(leaning against house - REP)
STEP 3: Police have VALID search W? 2 reqs
PC and particularity
STEP 3: Police have VALID search W? PC standard
fair probability that contraband or evidence of crime will be found in area searched
STEP 3: Police have VALID search W? Particularity standard
W must state w/ particularity
- the place to be searched AND
- the things to be seized
STEP 3: Police have VALID search W? Warrants and use of informants: If officer’s affidavit or PC is based on informant info, its sufficiency is determined by…
And what are relevant factors?
the totality of circumstances
STEP 3: Police have VALID search W? Warrants and use of informants: factors relevant to determining sufficiency
informant’s credibility AND basis of knowledge
STEP 3: Police have VALID search W? Warrants and use of informants: Can valid W be based on anonymous informant’s tip?
yes, IN PART, but can’t be ONLY based on the anonymous tip
Execution of search W: general rule
“Knock and announce”: knock, announce purpose, wait reasonable time for admittance
Execution of search W: exception to general rule (when “no knock” entry permitted)
Exigent circumstances:
- knocking and announcing would be dangerous, futile, or inhibit investigation
- biggest fear of INHIBITING investigation: destruction of evidence
Execution of search W: Does exclusionary rule apply to violation of “knock and announce” rule?
No
STEP 4: If W invalid, officer have GOOD FAITH DEFENSE that saves defective search W? General rule
Officer’s good faith reliance on search W overcomes defects w/ the PC or particularity reqs
STEP 4: If W invalid, officer have GOOD FAITH DEFENSE that saves defective search W? Exceptions to general rule (4)
Four exceptions to good faith reliance on defective search W:
1) affidavit underlying search W is so LACKING IN PC that no reasonable police officer would have relied on it
2) affidavit underlying search W so LACKING IN PARTICULARITY that no reasonable police officer would have relied on it
3) police officer or prosecutor LIED TO or MISLED the magistrate when seeking the W
4) if the MAGISTRATE is BIASED, and therefore has wholly abandoned his or her NEUTRALITY
STEP 5: If W is invalid and can’t be saved by good faith defense OR if police never had any W at all…
EXCEPTIONS to W req?
STEP 5: Exceptions to W req
1) Search incident to (constitutional) arrest
2) Automobile exception
3) Plain view
4) Consent
5) Stop & frisk
6) Evanescent Evidence
7) Hot pursuit
8) Special needs- inventory, public school
Exception to W req: Search incident to arrest (SIA): search must be…
lawful
if arrest unlawful, search unlawful
Exception to W req: SIA: time/place of search
arrest and search must be contemporaneous in time and place
Exception to W req: SIA: what can be searched?
the person and the areas within the person’s wingspan/grab area
where person could grab weapon or destroy evidence
Exception to W req: SIA & automobiles: When may police search interior (including passenger compartment, NOT trunk) of auto incident to arrest?
Arrestee is UNSECURED and still may gain access to interior of vehicle
OR
Police reasonably believe EVIDENCE of offense for which person is arrested may be found in vehicle
Exception to W req: SIA & automobiles: Exception to general rule, recognized in most states
Community caretaker: justifies W’less search if officer faces an emergency that threatens the health or safety of an individual or the public
Exception to W req: Automobile exception: In order for police to search anything or anybody and fall under this exception…
they must have PC to believe vehicle contains fruits, instrumentalities, evidence of crime
Exception to W req: Automobile exception: When can police search entire car?
ONLY IF, before searching anything or anybody, they have PC
Exception to W req: Automobile exception: What is included in the “entire car”?
Entire interior compartment and trunk (unlike SIA where trunk not included)
Can also open any PACKAGE, LUGGAGE, CONTAINER which could reasonably contain the item they had PC to look for whether or not owned by passenger or driver
Exception to W req: Automobile exception: What if police only have PC to search a container in the car?
May only search the container, not the entire car
Exception to W req: Automobile exception: When must PC necessary to justify Wless search of auto under this exception arise?
Can arise AFTER car stopped, but must arise BEFORE anything or anyone searched
Exception to W req: Plain view (2 reqs)
police must be LEGITIMATELY PRESENT at the location where he or she does the viewing of the item seized
it must be IMMEDIATELY APPARENT that item is contraband or a fruit of crime
Exception to W req: Consent: to be valid, must be…
voluntary (police saying they have W -> not voluntary)
Exception to W req: Consent: 3rd party consent rule
where 2 or more ppl have an equal right to use a piece of property,
EITHER can consent to its W’less search.
However, if both ppl are PRESENT and one consents to search and other does not,
one who does NOT controls.
Exception to W req: Stop and frisk (Terry stop): What is it & for what purpose?
brief detention for purpose of investigating suspicious conduct
Exception to W req: Stop and Frisk: legal standard for stopping
- reasonable suspicion of criminal activity
- supported by articulable facts
(hunch is never enough)
PC not necessary
Exception for W req: Stop and Frisk: What is a “frisk”? And when can police do it?
If reasonably believes armed and presently dangerous
Pat down of outer clothing and body to check for weapons or items immediately recognizable as contraband
Exception to W req: Stop and Frisk: When police frisk and find something, when is it admissible?
when stop was reasonable (reasonably believed armed and presently dangerous)
if reach inside and pull something out, admissible if officer reasonably believes by PLAIN FEEL that was weapon or contraband
Exception to W req: Stop and Frisk: If PC arises during investigatory stop, detention can…
become arrest and can conduct full search incident to arrest
Exception to W req: Stop and Frisk: Auto stops: If vehicle properly stopped for traffic violation and officer reasonably believe driver or passenger may be armed and dangerous, officer may…
conduct frisk of suspected person
search vehicle- LIMITED to areas in which weapon may be placed (passenger compartment)
Exception to W req: Evanescent evidence - what is it?
Evidence that might DISAPPEAR QUICKLY if police took time to get W
ex. police can scrape suspect’s fingernails w/o getting W b/c if took time to get W D might go wash hands
Exception to W req: Evanescent evidence - blood sample
need W before taking blood sample for DUI arrest (if practical to do so)
no longer per se exigency
Exception to W req: Hot pursuit of fleeing felon - rule of thumb
if police are NOT within 15 mins behind fleeing felon, it is NOT a valid hot pursuit exception
Exception to W req: Hot pursuit of fleeing felon - where can police enter?
Enter anyone’s home w/o W
any evidence in plain view is admissible
Exception to W req: Inventory searches: Before incarceration of arrestee, police may search…
1) the arrestee’s personal belongings, and/or
2) arrestee’s entire vehicle (including closed containers in car)
Exception to W req: Public school searches: Which school children can be randomly drug tested?
public school children engaged in extracurricular activities (doesn’t have to be sports; covers school dances)
Exception to W req: Public school searches: What can be searched? And for what purpose?
public school children’s effects, such as purses and/or backpacks
purpose: to investigate violations of school rules
Exception to W req: Public school searches: When is search reasonable?
1) offers a MODERATE CHANCE of finding evidence of wrongdoing
2) MEASURES adopted to carry out search are REASONABLY RELATED to OBJECTIVES of search
3) search is not excessively intrusive in light of age and sex of student and nature of infraction
What’s required to wiretap and eavesdrop?
warrant (it constitutes a search)
What’s required for a W to wiretap?
1) PC
2) named suspected persons in convo
3) describe w/ particularity convos that can be overheard
4) wiretap limited to short time pd
5) wiretap terminated when desired info obtained
6) return to ct showing convos intercepted
When is a W NOT necessary to eavesdrop?
UNRELIABLE EAR- everybody assumes risk that person w/ whom he is speaking will either CONSENT to gov’t MONITORING convo OR will be WIRED, and therefore has no 4th A objection on basis that it was a W-less search
UNINVITED EAR- speaker has no 4A right if she makes no attempt to KEEP THE CONVO PRIVATE
Who has standing for unlawful search of car?
driver but not passenger; passenger has no REP in other’s car
If police have arrest W for someone hiding in someone else’s home, what must police get?
Search W
Can anonymous tip be enough for reasonable suspicion for stop and frisk?
yes, if RELIABLE enough to make suspicion reasonable
Curtilage definition
immediate area surrounding home, like shed
have REP in this
Searches by school officials: what grounds are necessary for a search?
REASONABLE grounds
not W or PC
