Fourth Amendment

Question 1

THE FOURTH AMENDMENT

Answer 1

protects individuals against unreasonable searches and seizures of property and against unlawful arrests.

Question 2

Warrant (arrest)

Answer 2

An arrest warrant is generally not required for an arrest unless a person is arrested in his home. Probable cause required: An arrest warrant must be issued based on probable cause, which is a reasonable belief that the person violated the law.

Question 3

Automobile stop (Routine Stop)

Answer 3

The police may randomly stop automobiles if there is a reasonable suspicion or wrongdoing based on an objective standard.

Question 4

Checkpoints (Routine Stop)

Answer 4

The police may set up fixed checkpoints to test for compliance with laws relating to driving or if special law enforcement needs are involved, such as immigration.

Question 5

Stop and frisk (Routine Stop)

Answer 5

Police may also stop and frisk individuals without arresting them

Question 6

Search and seizure of property

Answer 6

A search warrant is required for government search and seizure of property that is located where one has a reasonable expectation of privacy because a person has a right to be free from unreasonable search and seizure.

Question 7

Sense-enhancing technology

Answer 7

If the govt uses technology available to the general public to enhance its senses, it suffices for knowing public exposure. But if device isn’t generally available, then it is an intrusion/search.

Question 8

Government action required (search)

Answer 8

There must be government action (as opposed to private) for the Fourth Amendment search and seizure protections to apply.

Question 9

Reasonable expectation of privacy (search)

Answer 9

Reasonable expectation of privacy: The defendant must have a reasonable expectation of privacy in the property or place being searched or seized for the Fourth Amendment protection to apply. One has a reasonable expectation of privacy in his home and its curtilage (i.e., surrounding buildings, such as a garage).

Question 10

Warrant is required for search

Answer 10

Where a person has a reasonable expectation of privacy, the police need a search warrant based on probable cause to search and seize property. A warrant must be:

a. Based on probable cause: Probable cause is established where it is reasonable that the items to be searched:
1. Are connected with criminal activities, and
2. Will be found in the place to be searched.
b. Issued by a neutral magistrate: The search warrant is issued based on facts presented to a neutral and detached magistrate.
c. Description: The search warrant must contain a particular description of the premises to be searched, and the items to be seized.
d. Knock and announce before execution: To execute the search warrant, the police must knock and announce themselves before entering the premises. If there is no response, the police can enter and seize the items described but may not exceed the scope of the warrant.

Question 11

Exceptions to the warrant requirement -SPACES

Answer 11

If the police conduct a search or seizure without a valid search warrant, there may be an applicable exception. Exceptions:

1. SILA
2. Plain View
3. Automobile: PC
4. Consent
5. Exigent Circumstances
6. Stop and Frisk

Question 12

SILA Exception

Answer 12

When the police are making a lawful arrest, they may search the area within the arrestee’s immediate control (his wingspan).

Question 13

Protective Sweep-SILA

Answer 13

Under SILA, police may also conduct a protective sweep of all or part of the premises where the arrestee is arrested if they have a reasonable belief based on specific and articulable facts that other dangerous individuals may be present.

Question 14

Vehicle Search-SILA

Answer 14

Under SILA, the police can search a car and its compartments if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense of the arrest.

Question 15

Plain View Exception

Answer 15

The police may make a warrantless search if they see an object or contraband in plain view so long as they are legitimately on the premises or have a right to be in the position to obtain the view.

Question 16

Automobile Exception

Answer 16

If police have probable cause to believe that a vehicle contains contraband, they may search the whole automobile and any container therein. If the driver is arrested, the police may impound the car, transport it to the station house, and search it there without a warrant.

Question 17

Consent Exception

Answer 17

Consent: The police may make a warrantless search if the person whose premises, items, or person will be searched voluntarily consents.

Question 18

Exigent circumstances Exception

Answer 18

The police may conduct a search or seizure without a warrant if they have probable cause and it is necessary to:

1. Prevent imminent destruction of evidence
2. Prevent imminent injury to persons, or
3. Search for a felony suspect in hot pursuit that the police reasonably believe has entered particular premises.

Question 19

Stop and frisk exception

Answer 19

A police officer may stop and frisk a person if the police have a reasonable suspicion of criminal activity or involvement that is supported by articulable facts. The brief detention may include a pat-down search for weapons if the suspect appears dangerous and armed, but the police may not search for contraband or evidence.

Question 20

Evidentiary search and Seizure

Answer 20

Like arrests, evidentiary searches and seizures must be reasonable to be valid under the 4th Amendment, but reasonableness requires a warrant except in certain circumstances.

Question 21

Evidentiary Search and Seizure, General Approach

Answer 21

1. Does D have a 4th Amendment Right?
   a. Was there got conduct? (if none, then no violation);
   b. Did the D have a reasonable expectation of privacy?
2. If so, did police have a valid warrant?
3. If the police didn’t have a valid warrant, did they make a valid warrantless search and seizure?

Question 22

Reasonable Expectation of Privacy

Answer 22

To have a 4th Amend right, a person must have a reasonable expectation of privacy. A person has a legitimate expectation of privacy any time:

1. She owned or had a right to possession of the place searched;
2. The place searched was in face her home, whether or not she owned or had a right to possession of it; or
3. She was an overnight guest of the owner of the place searched.

Question 23

Standing-Reasonable Expectation of Privacy

Answer 23

A person can object to an evidentiary search or seizure only if it violates his own reasonable expectations of privacy.

Question 24

Co-Conspirator Standing-Reasonable Expectation of Privacy

Answer 24

A co-conspirator must show that her own expectation of privacy was violated in order to challenge the seizure of damaging evidence.

Question 25

Valid Police Warranty

Answer 25

To be valid, a warrant must:

1. be issued by a neutral and detached magistrate,
2. be based on probable cause to believe that seizable evidence will be found on the premises or person to be searched; and
3. Particularly describe the place to be searched and the items to be seized.

Question 26

Execution of a warrant

Answer 26

A warrant must be executed by the police, w/out unreasonable delay, and police must generally announce their authority and purpose (knock and announce).

Question 27

Seizure of Unspecified property

Answer 27

When executing a warrant, police generally may seize any contraband or fruits or instrumentalities of a crime that they discover, whether or not specified in the warrant.

Question 28

Search of Persons Found on the Premises

Answer 28

A search warrant doesn’t authorize the police to search for persons found on the premises who are not named in the warrant. However, if the police have probable cause to arrest a person discovered on the premises to be searched, they may search that person incident to the arrest.

Question 29

Hot Pursuit (Exigent Circumstances)

Answer 29

Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search may be as broad as may be reasonably necessary to prevent the suspect from resisting or escaping. If police have probable cause and attempt to make a warrantless arrest in a public place, they may pursue the suspect into private dwellings.

Question 30

Evanescent Evidence (Exigent Circumstances)

Answer 30

Police may seize w/out a warrant evidence likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol, or scraping under a suspect’s fingernails.

Question 31

Inventory Searches

Answer 31

Police may search an arrestee’s belongings to inventory them before incarcerating the arrestee. Similarly, the police may search an entire vehicle-including closed containers therein-that has been impounded, as long as the search is part of an established department routine.

Question 32

Public School Searches

Answer 32

A warrant or PC is not required for searches of public school students or their possessions conducted by public school officials; only reasonable grounds for the search are necessary.