Fourth Amendment

Question 1

Fourth Amendment

Answer 1

Fourth Amendment protects people from unreasonable searches and seizures

DOES NOT apply to searches and seizures by US officials in foreign countries and involving an alien

Question 2

Arrests

Answer 2

Must be based on PROBABLE CAUSE

Warrant generally not required if arresting someone in a PUBLIC PLACE. BUT, non-emergency arrest of someone in his home REQUIRES an arrest warrant

Question 3

“Seizure”

Answer 3

Totality of circumstances, a reasonable person would feel that the was not free to decline the officer’s requests or otherwise terminate the encounter

Question 4

Probable cause

Answer 4

trustworthy facts or knowledge sufficient for a REASONABLE PERSON to believe that the suspect has committed or is committing a crime

Question 5

Stop & Frisk (Terry Stops)

Answer 5

No need for probable cause. Police merely need REASONABLE SUSPICION (based on totality of circumstances) of criminal activity supported by ARTICULABLE FACTS (more than a hunch)

FRISK is justified only if officer reasonably thinks suspect has a weapon. Limited to patdown of outer clothing, unless officer has specific info that weapon is hidden in a particular area of suspect’s clothing. May extend to passenger compartment of vehicle if reasonable belief.

During patdown, officer may seize ANY item that officer reasonably believes, by its “PLAIN FEEL,” is a weapon or contraband, and admissible as evidence

Police must act in a DILIGENT and REASONABLE manner in confirming or dispelling their suspicions

Can be basis for other probable cause for arrest.

Question 6

Automobile Stops generally

Answer 6

Police may stop a car if they have at least REASONABLE SUSPICION (totality of circumstances) that a law has been violated

Question 7

Vehicle Checkpoint Roadblocks

Answer 7

No reasonable suspicion requirement. To be valid, must

(1) stop cars on the basis of some NEUTRAL, ARTICULABLE STANDARD (e.g. every car);
(2) be designed to serve purposes CLOSELY RELATED to a particular problem pertaining to automobiles and their mobility

Ex: drunk drivers valid b/c of drunk driving problem
Ex: Border checkpoints valid
Ex: illegal drungs NOT valid reason b/c purpose of checkpoint is only to detect evidence of criminal wrongdoings

Question 8

Traffic Stops and Police Dogs

Answer 8

during routine traffic stops, a sniff is not a search so long as police do not extend the stop beyond time needed to issue a ticket or conduct normal inquiries

Dog ALERT can be the basis for PROBABLE CAUSE

NOTE: can’t use dog directly outside the home of a suspected drug dealer

Question 9

Government Conduct

Answer 9

Step one of search & Seizure analysis

includes: (1) publicly paid police, on or off duty, and (2) any PRIVATE individual acting at the direction of the public police

Ex of Privately paid police: Store security guards, subdivision police, campus police

Question 10

Expectation of Privacy

Answer 10

Government Conduct must reach into your reasonable expectation of privacy in place searched or item seized

Essentially standing to bring a 4th amendment challenge. Automatic standing if:

(1) you own the premises searched (always have standing)
(2) you live on the premises searched, whether owner or not (ex: grandchildren)
(3) overnight guests have standing to object ot legality of the search to the place they are staying

Personal Property: standing only if you have a reasonable expectation of privacy in the item or area searched

Question 11

No Expectation of Privacy

Answer 11

No standing. No expectation of privacy in things you HOLD OUT TO THE PUBLIC. Ex:

(1) sound of your VOICE, (2) 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 (but note installation of GPS device constitutes a search and thus needs probable cause), (6) OPEN FIELD doctrine, (7) anything that can be seen from FLYING over the public airspace, (8) the ODORS emanating from your luggage or car, (9) your garbage set out on the CURB for collection

Question 12

Search Warrant

Answer 12

Two requirements: probable cause and particularity

Must have search warrant unless if search falls under six exceptions

Must be issued by a neutral and detached magistrate (AG is not neutral)

Can get warrant to search third party premises, even if no evidence that suspect is there. Just need PC to believe evidence will be there

Question 13

Probable cause for Search warrants

Answer 13

Warrant issued only if there is probable cause (FAIR POSSIBILITY) to believe that seizable evidence will be found on the person or premises at the time the warrant is executed

Question 14

Informants for search warrants

Answer 14

Must meet “totality of circumstances” test

Takes into account informant’s credibility and basis of knowledge. Identity need not be revealed, anonymous is fine

Question 15

Particularity

Answer 15

Warrant must state with particularity the PLACE TO BE SEARCHED and the THINGS TO BE SEIZED

Question 16

Reasonable Reliance

Answer 16

Even if warrant is invalid, officer’s reasonable and good faith reliance on a search warrant overcomes defects with probable cause or particularity

Exceptions:
(1) affidavit underlying warrant is so LACKING in PC or particularity that no reasonable police officer would have relied on it, (2) police officer or prosecutor LIED to or MISLEAD the magistrate when seeking the warrant, or (3) if the magistrate is BIASED

Question 17

Exceptions to Warrant Requirement

Answer 17

Six:
(1) search incident to arrest, (2) automobile exception, (3) plain view, (4) consent, (5) stop and frisk, (6) Evanescent evidence, hot pursuit, and special needs

Question 18

Search incident to arrest

Answer 18

Arrest must be LAWFUL. If arrest unlawful, search unlawful.

Arrest and search must be CONTEMPORANEOUS in time and place

Can search PERSON and the areas within his WINGSPAN

Can’t search cell phones b/c no exigent circumstances

Question 19

Search incident to arrest & cars

Answer 19

NO TRUNK. Police may search the INTERIOR (passenger compartment) of the car incident to arrest ONLY IF (gantz rule):

(1) the arrestee is unsecured and still may gain access to the interior of the vehicle (not in the squad car), OR (2) police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

Question 20

Community Caretaker Exception

Answer 20

Own exception, but comes up a lot with Gantz.

Justifies warrantless search if an officer faces an emergency that threatens the HEALTH or SAFETY of an individual or the public

Question 21

Automobile Exception

Answer 21

If police have PC to believe vehicle contains fruits, instrumentalities, or evidence of a crime, may search the WHOLE vehicle and any CONTAINER that might reasonably contain the item for which they had PC to search

If PC limited to the container, however, can only search the container, not other parts

Question 22

Plain View Exception

Answer 22

Police may make a warrantless seizure when they:
(1) are legitimately on the premises, (2) discover evidence, fruits, or instrumentalities of crime, or contraband, (3) see such evidence in plain view, and (4) have PC to believe that the item is evidence, contraband, or a fruit or instrumentality of crime

Legit presence: must be public or pursuant to warrant of a home

Question 23

Consent

Answer 23

VOLUNTARY consent is exception to warrant requirement.

Must be made by any person with an apparent equal right to use or occupy the property. BUT, if co-occupant is present and objects and search is directed against co-occupant, NO consent.

NOTE: if co-occupant who does not consent is REMOVED FROM TEH PREMISES for a reason unrelated to refusal (lawful arrest), police may search upon consent of the other occupant

Question 24

Terry stop and automobiles

Answer 24

Stop & Frisk can also be used in conjunction with an auto stop. If car stopped for traffic violation and officer reasonably believes that driver or passenger may be armed and dangerous, officer may conduct a frisk and can even SEARCH THE VEHICLE so long as limited to areas in which a weapon may be placed

Question 25

Evanescent Evidence

Answer 25

evidence that might disappear quickly if police took time to get a warrant. No warrant needed

Ex: stuff under suspect’s fingernails
Ex: blood sample of DUI suspect however requires a warrant if practical

Question 26

Hot Pursuit

Answer 26

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure

MBE tip: if not within 15 minutes behind fleeing felon, NOT hot pursuit

NOTE: if 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

Question 27

Inventory Searches

Answer 27

before incarceration of an arrestee, police may search (1) the arrestee’s personal belongings, and (2) the arrestee’s entire vehicle

Question 28

Public School Searches

Answer 28

warrant exception

students engaged in extracirricular activities (team, dances) can be randomly drug tested

Can search w/o a warrant public school children’s items such as purses and backpacks if investigating VIOLATIONS of school rules

School search standard, reasonable if:

(1) moderate chance of finding evidence of wrongdoing;
(2) measures adopted are reasonably related to the objectives of the search; AND
(3) search is not excessively intrusive

Question 29

Wiretapping and eavesdropping

Answer 29

REQUIRES A WARRANT

Exceptions: “unreliable ear” and “uninvited ear.” Everybody assumes risk that the person to whom he is speaking will be wiretapped. Speaker also has no protection if she makes no attempt to keep the conversation private

Question 30

Shocks the Conscience

Answer 30

Evidenceo btained in a manner offending a “sense of justice” is inadmissible under Due Process Clause

Balance society’s need against magnitude of the intrusion.

Ex: surgery to remove a bullet for evidence

Question 31

execution of warrant

Answer 31

Only police can execute warrant and it must be executed w/o unreasonable delay

Scope of search is limited to what is reasonably necessary to discover the items described in the warrant

However, Police may seize any contraband or fruits or instrumentalities of a crime, whether or not specified in the warrant

Question 32

Knock and announce rule

Answer 32

When executing warrant, police must knock, announce their purpose, and wait a REASONABLE time for admittance

EXCEPTION: if police has REASONABLE SUSPICION that announcing would be dangerous, futile, or inhibit investigation

Violations of this rule WILL NOT result in suppression of evidence (Exclusionary rule does not apply to knock and announce violations)