Fourth Amendment

Question 1

What does the Fourth Amendment apply to?

Answer 1

Gov’t action

NOT private action

Question 2

When is a person seized?

Answer 2

when, as the result of government action a reasonable person in his position would not feel free to leave, or otherwise terminate the police encounter

Question 3

Seizure when suspect is in naturally confined location

Answer 3

whether a reasonable person would feel free to terminate the encounter with police

Question 4

What is a Terry Stop?

Answer 4

a “brief investigatory seizure”

Question 5

Terry Stop vs. Arrest

Answer 5

Duration and purpose

Question 6

Permitted duration for Terry Stop

Answer 6

The time necessary to confirm or deny suspicion

Confirm = gives rise to probable cause

Deny = seizure must end

Question 7

When is property seized?

Answer 7

• When police take control of the property; AND
• And interfere with owner’s possessory interest

Question 8

What is a “search?”

Answer 8

1. “Investigatory trespass” against a textual 4th Am interest (person, papers or effects) OR
2. Intrusion into a reasonable expectation of privacy (REP).

Question 9

When do police not have Knock and Announce?

Answer 9

• if police have reasonable suspicion to believe that doing so will endanger officers; OR
• Lead to the destruction of evidence or flight of the suspect

Question 10

Knock and Announce Rule

Answer 10

Unless exigent circumstances exist, the arresting officers must “knock and announce” their identity before entering to make the arrest

Question 11

Reasonable Expectation of Privacy

Answer 11

1. ∆ manifests a subjective expectation of privacy by making an effort to shield the thing or the activity from the public, and
2. The expectation is objectionably reasonable because it is an expectation society is willing to recognize.

Question 12

When is there no expectation of privacy?

Answer 12

There is no REP in something a person knowingly exposes to the public

Question 13

Police Animals & Searches

Answer 13

Police use of animals trained to detect only contraband does not qualify as a search,

UNLESS the police commit an investigatory trespass to get animals to the location of detection

Question 14

Things ∆ does not have a reasonable expectation of privacy in because they’be been knowingly exposed to the public:

Answer 14

1. handwriting exemplars
2. voice exemplars
3. bank records
4. pen registers
5. info on email sent through an ISP
6. conversations the suspect believes are private that the police record with the consent of the other party to the conversation (a false friend)
7. open fields: unoccupied areas beyond the curtilage of the home, even if police trespass into the open fields
8. Naked-eye observations of private property by air so long as police comply with flight limitations
9. Aerial photography of the large fenced in area around an industrial complex
10. Discarded property, such as commingled garbage and abandoned rental premises.

Question 15

4th Amendment requirement for searches and seizures

Answer 15

they must be reasonable

Question 16

Requirements for getting valid warrant

Answer 16

1. must be issued by a neutral and detached magistrate
2. after an adequate showing of probable cause, and
3. must describe with particularity the place to be searched and items to be seized

Question 17

Violation of the Knock and Announce Rule

Answer 17

Violates the 4th Amendment but does not trigger Exclusionary Rule

Question 18

When is probable cause satisfiied?

Answer 18

1. the testimony or affidavit presented to the magistrate contains facts or circumstances that are still relevant and not out of date; and
2. it must be sufficient that a reasonable person would conclude it to be more probable than not that evidence of named items or persons will be found.

Question 19

Satisfying Probable Cause

Totality of the Circumstances Test

Answer 19

The relevant factors taken into account are:

1. credible information;
2. reliable informant;
3. police corroboration; and
4. declaration against interest.

Question 20

Arresting a suspect in public

Answer 20

Need probable cause, do not need warrant

Question 21

Exceptions to Warrant Requirement

Answer 21

1. Searches Incident to a Lawful Arrest
2. Automobile Exception
3. Plain View
4. Consent
5. Searches Pursuant to a Stop
6. Hot Pursuit
7. Exigent Circumstances

Question 22

Situations where exigent circumstances allow officer to enter suspect’s home to arrest suspect without warrant:

Answer 22

1. An arrest attempt outside the home is: thwarted because suspect retreats into home
2. There is: insufficient time to secure a warrant because delay would allow the suspect to evade arrest or destroy evidence
3. The arresting officer is: in hot pursuit and has probable cause to effect a valid arrest of the suspect
4. The offense is more serious than a minor misdemeanor
5. The officer did not unlawfully create the exigency.

Question 23

Searches incident to a Lawful Arrest

Answer 23

To protect the arresting police officers and to prevent the destruction of evidence, the defendant’s person, as well as the area within his immediate control (usually referred to as the wingspan) may be searched incident to a lawful arrest.

*includes a cursory scan or “protective sweep” of adjoining rooms, and the entire domicile may be scanned, provided there is reasonable suspicion of an armed accomplice

Question 24

Searches incident to a Lawful Arrest

In A Car

Answer 24

the police may search:

• the passenger compartment of the vehicle only if it is reasonable to believe that the defendant might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest

Question 25

When must a search incident to lawful arrest occur?

Answer 25

must be contemporaneous to the arrest and may even precede it

Question 26

Automobile exception

Answer 26

Once police have probable cause to search a moving or temporarily stopped vehicile, they may seize and search it later, even if there is sufficient time to get a warrant between the seizure of the vehicle and the subsequent search

Question 27

Automobile exception applies to:

Answer 27

All containers in the vehicle

Question 28

Automobile Stops

Answer 28

The police may stop traffic to check the vehicle registration and drivers’ licenses of automobile drivers, as long as the stops:

1. are random; and
2. are based on some fixed formula, such as every vehicle or every fifth vehicle.

Question 29

Plain View Requires

Answer 29

1. The police are in a lawful vantage point to observe the item;
2. The incriminating nature of the item is immediately apparent; and
3. The officer has lawful access to the point of seizure

Question 30

Seizure of property in plain view

Answer 30

No warrant required

Question 31

Consent

Answer 31

• Consent is a warrantless intrusion requiring no justification; an individual may simply waive his Fourth Amendment rights as long as that waiver is voluntary.
• To justify a search based on consent, police must establish the following three elements:
  
  1. voluntariness;
  2. proper scope; and
  3. third-party consent

Question 32

Third Party Consent

Answer 32

The person consenting must have either actual or apparent authority to consent, such as a person who:

1. truly may consent (such as the owner or occupant of the particular premises); or
2. has apparent authority to consent, such as having a key or knowing where things are on the premises—even if it later turns out the person lacked the actual authority to consent.

Question 33

Hot Pursuit

Answer 33

A warrantless search is lawful when police are in actual “hot pursuit” of a fleeing suspect to apprehend him;

they may seize “mere” evidence as well as any contraband they find

Question 34

Exigent Circumstances

Answer 34

Police may conduct warrantless searc and seizure of evidence in, or on, a suspect’s body provided that:

1. there is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained; and
2. the procedure for seizing the evidence is reasonable

Question 35

Administrative Searches

Answer 35

conducted by an administrative agency for the enforcement of the regulations granted to that specific agency, with a lesser showing of probable cause required

Question 36

Administrative Warrant

Answer 36

will generally be required for administrative inspectors to search private homes or businesses

Question 37

Exception to administrative warrant requirement

Answer 37

1. warrantless searches of businesses that are traditionally subject to extensive regulation and affect important public interests are not unreasonable within the meaning of the Fourth Amendment;
2. the search of a locked storeroom of a firearms warehouse is permitted during reasonable hours because of the public interest involved; and
3. a search for highly contaminated food is justified without a warrant.

Question 38

Terry Stop

Answer 38

Justified by reasonable suspicion that “crime is afoot”

Question 39

Terry Search (Frisk)

Answer 39

A cursory protective search:

• for weapons OR
• some other instrumentality that creats an imminent danager to the officer or others in close proximity

Question 40

What is the justification for a Terry Frisk?

Answer 40

Protective,

not to search for evidence

Question 41

Scope of Terry Search

Answer 41

Cursory inspection of suspecti’s outer clohting to confirm or deny that suspect is armed

Question 42

Requirements for claiming remedy of exclusion

Answer 42

1. The unreasonable search or seizure must trigger the remedy of exclusion;
2. The defendant claiming the remedy (seeking exclusion) must have standing
3. The facts do not support applying an exception to the exclusionary rule

Question 43

When does a ∆ have standing?

Answer 43

1. if he has ownership or a possessory interest in the place searched OR items seized
2. The owner of a car, or the person in possession of the car (like someone who rents a car) has standing to seek exclusion of evidence obtained as a result of an unreasonable search of the car
   
   1. passender in the car do not have standing to complain about the search of the car
3. Guest (overnight) in someone else’s residence has stsanding to challenge search of the home
   
   1. short-term or non-overnight guests do not have standing to complain about search

Question 44

Border Crossings and Checkpoints

Answer 44

• As an incident of national sovereignty, customs and immigration searches, when conducted by government agents in a routine manner and not particularized for a specific person or specific property, are not an invasion of privacy and do not require probable cause
• searches made by government officials at the borders are reasonable by virtue of occurring at the national border, and do not require probable cause or reasonable suspicion.