Fourth Amendment Flashcards
Arrests and Detentions
1-an arrest must be based on probable cause
2-arrest warrants are generally not required before arresting someone in public place
3-however, a non-emergency arrest of an individual in his home does require an arrest warrant
4-station house detention: the police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation
Investigatory Detentions (Terry stop)
1-police have the authority to briefly detain a person even if they lack probable cause to arrest–in order to make such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity
2-whether the police have reasonable suspicion depends on the totality of the circumstances
3-automobile stops: the police may stop a car if they have at least reasonable suspicion that the law has been violated
a. exception–checkpoint roadblock
4-traffic stops and police dogs–during routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
a. in 2013, supreme court held that during such a traffic stop, a dog alert to the presence of drugs can form the basis for probable cause for a search
b. supreme court also held that the police-without probable cause-cannot use a drug sniffing dog directly outside the harm of a suspected drug dealer
Search and Seizure Question (model step 1)
Governmental conduct?
a-the publicly paid police-on or off duty
b-any private individual acting at the direction of the public police
1-privately paid police actions do NOT constitute governmental conduct UNLESS they are deputized w/ power to arrest you
2-examples of privately paid police: store security guards; subdivision police; campus police
Search and Seizure Question (model step 2)
Reasonable expectation of privacy? Standing
a-automatic categories of standing
1-if you own the premises searched you always have standing to object to the search of the place you own
2-you live on the premises searched, whether you have ownership interest or not
3-overnight guests have standing to object to the legality of the search of the place they’re staying
b-an important “sometimes” category of standing: you own the property seized
1-if you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched
c-the “No Standing” categories–you have NO expectation of privacy, and therefore no standing for anything that you hold out to the public everyday–the following list are things held out to the public, the seizure of which implicates no right of privacy:
1-the sound of your voice
2-the style of your handwriting
3-paint on the outside of your car
4-account records held by a bank
5-monitoring the location of your car on a public street or in your driveway
6-anything that can be seen across the open fields
7-anything that can be seen from flying over in the public air space
8-the odors emanating from your luggage or car
9-your garbage set out on the curb for collection
Search and Seizure Question (model step 3)
Did the police have a valid search warrant?
a-2 core requirements for a facially valid search warrant: probable cause and particularity
1-standard for probable cause: a fair probability that contraband or evidence of a crime will be found in the area searched
2-particularity–the warrant must state with particularity the place to be searched and the things to be seized
3-warrants and the use of informants
A-if an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances
B-an informant’s credibility and basis of knowledge are all relevant facts in making this determination
C-a valid warrant can be based in part on an informant’s tip even though that informant is anonymous
b-“no knock” entry permitted in the execution of a search warrant if exigent circumstances exist:
1-an officer need not “knock and announce” if knocking and announcing would be dangerous, feudal, or inhibit the investigation
2-biggest fear of inhibiting the investigation–destruction of evidence
Search and Seizure Question (model step 4)
if the warrant is not valid, does an officer’s good faith defense save the defective search warrant?
a-general rule is that an officer’s good faith reliance on a search warrant overcomes defects w/ the probable cause or particularity requirements
b.4 exceptions to a good faith reliance on a defective search warrant:
1-the affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would’ve relied on it
2-the affidavit underlying the warrant is so lacking in particularity that no reasonable officer would’ve relied on it
3-the police officer or prosecutor lied to or misled the magistrate when seeking the warrant
4-if the magistrate is biased, and therefore has wholly abandoned his or her neutrality
Search and Seizure Question (model step 5)
if a warrant is invalid an cannot be saved by the good faith defense or if the police never had any warrant at all, then you move to the last step: exceptions to the warrant requirement
Exception to Warrant Requirement: Search Incident to Arrest
1-the arrest must be lawful–if the arrest is unlawful then the search is unlawful
2-the arrest and search must be contemporaneous in time and place
3-geographic scope limitation: what can be searched? the person and the areas within the person’s wingspan
4-Gant Rule-search incident to arrest and automobiles: the police may search the interior of the auto accident to arrest ONLY IF:
a-the arrestee is unsecured and still may gain access to the interior of the vehicle; OR
b-the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
c-NOTE-most states recognize the community caretaker exception to this rule which justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual to the public
Exception to Warrant Requirement: Automobile Exception
1-in order for the police to search anything or anybody and fall under the automobile exception they must have PC
2-NOTE-if, BUT ONLY IF, before searching anything or anybody the police have PC then they can search the entire car–this includes the entire interior compartment, and the trunk
3-the PC necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped–BUT the probable cause must arise before anything/anybody is searched
Exception to Warrant Requirement: Plain View
1-to constitute plain view seizure the police officer must be legitimately at the location where he or she does the viewing of the item seized
2-it must be immediately apparent that the item is contraband or a fruit of a crime
Exception to Warrant Requirement: Consent
1-for consent to be valid, the consent must be voluntary
2-3rd party consent
a-RULE=where 2 or more people have an equal right to use a piece of property, either can consent to its warrantless search–however, if both people are present and 1 person consents to the search and the other does NOT consent, then the one who does not consent controls
b-but NOTE–if a co-occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal, the police may search upon consent of the other occupant
Exception to Warrant Requirement: Stop and Frisk
1-a Terry stop is a brief detention for the purpose of investigating suspicious conduct
2-the legal standard for stopping–reasonable suspicion
3-the reasonable suspicion standard is less than the probable cause standard
4-a Terry “frisk” is a pat down of the outer clothing and body to check for weapons
5-Note-if PC arises during an investigatory stop, the detention can become an arrest and the officer could then conduct a full search incident to that arrest
6-auto stops–if a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may 1) conduct a frisk of the suspected person, and 2) may search the vehicle so long as it is limited to the areas in which a weapon may be placed
Exception to Warrant Requirement: Evanescent Evidence, Hot Pursuit, and Special Needs Searches
1-evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant
2-hot pursuit of a fleeing felon–Rule of Thumb–if the police are not within 15 minutes behind the fleeing felon, it is NOT a valid hot pursuit exception
a-NOTE-if the police are truly in hot pursuit they can enter anyone’s home w/o a warrant, and any evidence they see in plain view will be admissible
3-inventory searches–before incarceration of an arrestee, the police may search 1-the arrestee’s personal belongings and/or 2-the arrestee’s entire vehicle
4-public school searches
a-public school children engaged in extracurricular activities can be randomly drug tested
b-warrantless searches of public school children’s affects, such as purses and/or backpacks is permissible to investigate violations of school rules
c-a school search will be held to be reasonable only if:
i-it offers a moderate chance of finding evidence of wrongdoing; and
ii-the measures adopted to carry out the search are reasonably related to the objectives of the search; and
iii-the search is NOT excessively intrusive
Wiretapping and Eavesdropping
1-all wiretapping and eavesdropping requires a warrant
2-exceptions to the eavesdropping rule: unreliable ear and uninvited ear
a. everybody in this society assumes the risk that the person to whom he is speaking will either consent to the gov’t monitoring the conversation or will be wired and therefore has no 4th amendment objection on the basis that it was a warrantless search
b. a speaker has no 4th amendment right if she makes no attempt to keep the conversation private
