Fourth Amendment Flashcards
Fourth Amendment
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
Arrests
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
“Seizure”
Totality of circumstances, a reasonable person would feel that the was not free to decline the officer’s requests or otherwise terminate the encounter
Probable cause
trustworthy facts or knowledge sufficient for a REASONABLE PERSON to believe that the suspect has committed or is committing a crime
Stop & Frisk (Terry Stops)
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.
Automobile Stops generally
Police may stop a car if they have at least REASONABLE SUSPICION (totality of circumstances) that a law has been violated
Vehicle Checkpoint Roadblocks
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
Traffic Stops and Police Dogs
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
Government Conduct
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
Expectation of Privacy
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
No Expectation of Privacy
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
Search Warrant
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
Probable cause for Search warrants
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
Informants for search warrants
Must meet “totality of circumstances” test
Takes into account informant’s credibility and basis of knowledge. Identity need not be revealed, anonymous is fine
Particularity
Warrant must state with particularity the PLACE TO BE SEARCHED and the THINGS TO BE SEIZED
Reasonable Reliance
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
Exceptions to Warrant Requirement
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
Search incident to arrest
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
Search incident to arrest & cars
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
Community Caretaker Exception
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
Automobile Exception
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
Plain View Exception
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
Consent
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
Terry stop and automobiles
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