Fourth amendment Flashcards
What is a search?
Must be a governmental intrusion. Either:
1) a physical intrusion into a constitutionally protected area (a trespass); OR
2) Intrusion into a reasonable expectation of privacy :
a) there must be a subjective expectation of privacy that society will accept as reasonable.
Dog sniffs are not a search.
If the government uses sense-enhancing technology that’s not in general use to obtain information that could not be obtained without physical intrusion into constitutionally protected area, then it’s a search (Kyllo rule).
Third party exception
If something is disclosed to a third party, the REP is lost.
Test for 4th
1) Is there a search?
2) Is it reasonable? (Means a warrant or exception and PC or exception).
Test for probable cause
Totality of the circumstances. See Illinois v. Gates.
Also, can use Aguilar-Spinelli to look at:
1) What is the basis of knowledge; AND
2) Is the information/informant reliable.
There is a presumption that officers and named citizens are reliable. With anon informants, there must be corroboration. Also, a criminal will likely be seen as reliable if information is a statement against interest.
Types of probable cause
PC to arrest: requires crime PC and offender PC
PC to search: requires crime PC, search PC, and seizure PC to establish that seizable items of evidence of a crime will be found at the place to be searched.
Exceptions to Warrant that require PC
1) Arrest in public
2) Search incident to arrest
3) Civil emergency
4) hot pursuit
5) evanescent evidence
6) Automobile exception
7) plain view/plain feel seizure
8) “place” seizure
Arrest
Requires PC and the person knows he is in custody.
From ractice test: a seizure if a reasonable innocent person would not feel free to leave or terminate the encounter.
Factors:
1) Time of the encounter. If at night, more likely arrest than stop;
2) Length of time of encounter. If lasts longer than time to dispel suspicions, then full arrest
3) Public/private. If public, then less likely to be full arrest
4) Indicia of seizure. Physical restraint and officer’s demeanor
5) Polite/non-accusatory questions
6) requesting item from substect and then retaining it. Ex: it was a seizure to request license and ticket and then retain it. Contra, not seizure to ask to see license and ticket.
7) Putting on blue lights and telling to stop. Not a seizure when person is running.
8) Seizure occurs when the car stops.
Stop
Requires RS that person is committing, will commit, or has committed a crime. Limited time and limited purpose. No searching unless RS that armed and dangerous. Then may frisk for weapons (Terry).
Warrant reqs
To apply for warrant, need to give magistrate affidavit with:
1) oath or affirmation,
2) describing particular place to be searched; AND
3) describing people and things to be seized
Warrant, when issued, must:
Specify place to be searched (more than just blue house)
Specify items to be seized (more than evidence of crime)
Degree of specificity depends on crime
PC must be apparent on the face of the warrant (no good faith exception to facially defective warrant)
PC to arrest
Test is whether reasonable officer could conclude PC to believe suspect committed crime (examine events leading up to arrest).
Public: Only need PC to arrest
Private (subject’s home): Need an arrest warrant AND RS that the defendant is home OR have PC to arrest or search premises, RS that exigent circumstances exist, AND RS that accused is home.
Third party arrest: CANNOT USE ARREST WARRANT. Need search warrant or exigent circumstances.
Exigent circumstances
1) Imminent destruction of evidence (evanescent evidence). Balance how long it would take to get warrant with the likelihood that the evidence will disappear. Can get scape of subject’s fingernail if trying to wipe away or stop someone with DUI. Goes too far when police see suspect swallow evidence and take him to hospital to get stomach pumped.
2) Hot Pursuit: Requires PC to arrest AND continuous pursuit. Can look all areas of house where he may be.
Factors to discuss for exigent circumstances:
1) Relative peacefulness of the entry
2) The time of day or night
3) The seriousness of the crime
4) the probability that the suspect was armed
5) the danger of flight
6) the time it would take to get a warrant
7) strong PC
8) the probability that the suspect is on premises
Administrative search
Upon ballancing need to search vs nature and quality of the intrusion (right to privacy).
FACTORS:
1) Need beyond the needs of LE
2) That is jeopardized by warrant or PC requirement
SECOND PART OF TEST:
1) Plan or system to limit arbitrary government action
2) REP is lessened
3) Extent of the intrusion is minimal
Civil Emergency exception
1) PC to believe that serious bodily harm or property damage is about to occur, AND
2) PC to believe that aid is needed
No death exception. If person already dead then need a warrant.
Place seizure
If RS that bag contains evidence, then can treat it like a person. Can get dog sniff = equivalent to asking bag questions.
Terry Stop
If RS that person is armed and dangerous, then may frisk him for weapons. Further, if person is in automobile, then they may “frisk” the passenger compartment for weapons, looking anywhere in the passenger compartment where weapons may be.
