Fourth Amendment

Question 1

Is government action necessary?

Answer 1

Yes. The Fourth Amendment applies only to government, not private, conduct.

Where the actor is an agent of the federal, state, or local governments, this requirement is met.

The Fourth Amendment does not apply to private parties acquiring evidence.

Question 2

When are arrest warrants required?

Answer 2

Arrest warrants are generally not required before arresting someone in a public place. However, the non-emergency arrest of an individual in his own home requires an arrest warrant.

Question 3

When is a person in custody?

Answer 3

There is a two step approach:
1. Whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.

To determine this, the relevant factors are:

1. the location of the questioning;
2. the duration of the questioning;
3. statements made during the interview;
4. the presence or absence of physical restraints during the questioning; and
5. the release of the interviewee at the end of the questioning.
6. Whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.

Question 4

When is a person under arrest?

Answer 4

When a person is taken into custody for the purpose of commencing a criminal action, an arrest has occurred.

A stop and frisk is not an arrest.

Question 5

What is the warrant requirement?

Answer 5

A valid arrest may occur either with or without a warrant. Generally, no warrant is required to arrest if the police have PC.

An arrest warrant is required before police can arrest an individual in his own home, absent exigent circumstances or consent.

Question 6

When is there probable cause?

Answer 6

PC may arise when the police come into possession of the requisite facts and circumstances from their own observations or from information obtained from third parties.

An informant may also provide the necessary information for PC. The tip may serve as a basis for PC if reliability is established by:

1. the informant’s tip containing specific details; and
2. the reliability of both the details and the informant being confirmed prior to the moment of arrest.

Question 7

When is a warrantless in-home arrest justified by consent or exigent circumstances?

Answer 7

An arrest attempt outside the home is thwarted because the suspect retreats into the home;

there is insufficient time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence; or

The arresting officer is in “hot pursuit” and has PC to effect a valid arrest of the suspect.

Police generally may not legally search for the subject of an arrest warrant in the home of a third person absent exigent circumstances or consent without a search warrant.

Question 8

When does police have to knock and announce in executing a warrant?

Answer 8

Unless exigent circumstances exist, the arresting officers must knock and announce rule does not automatically trigger the automatic exclusion of evidence seized after the violation.

Exigent circumstances would include reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit effective investigation.

Question 9

What is PC?

Answer 9

It is the measure of justification that applies to full-scale intrusions - searches, seizures, and arrests. It is defined as that quantity of facts and circumstances within the PO’s knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime or that specific items related to the criminal activity can be found at a particular location.

This is an objective analysis. Subjective intentions don’t matter.

Question 10

When are conditional warrants allowed?

Answer 10

They are warrants that are conditioned on an event occurring, such as the delivery of a package. The court requires:

1. if the triggering condition occurs, there must be a fair probability that evidence of a crime or contraband will be found at a particular location; and
2. there is PC that the triggering condition will occur.

Question 11

What is reasonable suspicion?

Answer 11

It is a belief based upon articulable information that is more than a mere hunch used by a reasonable person or PO that the suspect has or is about to engage in illegal or criminal activity.

This is a totality of the circumstances analysis to determine whether the PO had a particularized and objective basis for suspecting wrongdoing.

Question 12

What is the Terry standard?

Answer 12

In order to conduct a Terry stop, the PO must be able to articulate more than a reasonable suspicion that criminality is afoot.

To frisk, the PO must articulate reasonable suspicion that the suspect is armed and dangerous.

Question 13

What is an expectation of privacy?

Answer 13

A person may assert his Fourth Amendment rights only when there is a government intrusion into his reasonable expectation of privacy, or when the government’s investigatory conduct results in a physical trespass against his person, home, papers, or effects.

The person must have a subjective expectation of privacy and a reasonable expectation of privacy that society will respect.

Question 14

What is standing for the Fourth Amendment?

Answer 14

A D must establish:

1. An ownership or possessory interest in the premises is sufficient.
2. A passenger in an automobile lacks standing to challenge the validity of the search.
3. However, a passenger does have standing to challenge the seizure of stopping the car.
4. A D who is an overnight guest in another’s home has standing. However, short-term guests, non-overnight guests, and commercial guests have no reasonable expectation of privacy.

A D has a reasonable expectation of privacy when the objects identified by the government investigation are not held out to the public. A D has no expectation of privacy in things held out to the public. Furthermore, a D does not have a reasonable expectation of privacy in the following items: handwriting exemplars, voice exemplars, bank records, pen registers, and private conversations.

Question 15

What is curtilage?

Answer 15

The living space directly around the home. This is granted Fourth Amendment protection.

Under the open fields doctrine, any unoccupied or undeveloped are is not granted protection.

Question 16

What are the use of police dogs?

Answer 16

In general, a canine search does not constitute an unreasonable search unless the canine physically intrudes upon a constitutionally protected area.

Question 17

What are warranted actions?

Answer 17

The Fourth and Fourteenth Amendments only prohibit unreasonable searches and seizures.

A search conducted by a government authority without a warrant is presumptively invalid unless it falls within a specifically carved-out exception.

Therefore, a reasonable search must be conducted either pursuant to a warrant or under an exception to the warrant requirement.

Question 18

What are the requirements of a warrant?

Answer 18

A warrant is a judicial authorization for police action, either to search or to arrest.

1. It must be issued by a neutral and detached magistrate;
2. after an adequate showing of probable cause; and
3. for search warrants, must describe with particularity the place to be searched and items to be seized. for arrest warrants, must describe the identity of the suspect either by name or a reasonably specific description so that the officers may locate the suspect with reasonable effort.

PC is satisfied by: 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.

Use of an informant’s tip will be evaluated by:

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

Question 19

How can a D challenge a warrant?

Answer 19

A D may challenge the affidavit by proving by a preponderance of the evidence that:

1. a substantial showing that the affidavit contained false statements.
2. the statements were made intentionally, knowingly, or in reckless disregard for the truth; and
3. the magistrate’s finding of probable cause could not have been made without the false statements.

Question 20

What are the rules governing execution of a warrant?

Answer 20

Only the police may execute the warrant.

A search warrant must be executed promptly while PC still exists.

Absent exigent circumstances, a PO must knock and announce his presence before attempting a forcible entry.

Person present at a search warrant execution may be detained but not searched merely because of their presence.

Question 21

What are the exceptions to the warrant requirement?

Answer 21

1. Searches Incident to a Lawful Arrest
2. Automobile
3. Plain view
4. Consent
5. Searches pursuant to a stop
6. Hot pursuit
7. Exigent circumstances
8. Admin searches
9. Border crossings
10. Others

Question 22

What is a search incident to a lawful arrest?

Answer 22

The D’s person and the immediate control may be searched incident to a lawful arrest.

This includes a protective sweep of a domicile provided there is reasonable suspicion of an armed accomplice. This does not permit a warrantless search of the entire house.

If there is a custodial arrest, the police may search the passenger compartment only if:

1. it is reasonable to believe that the D might access the vehicle at the time of the search; or
2. that the vehicle contains evidence of the offense of arrest.

The search must be contemporaneous to the arrest and may even precede it.

It is unconstitutional to search and seize digital contents without a warrant.

Question 23

What is the automobile exception?

Answer 23

There is a lesser expectation of privacy in automobiles, boats, or airplanes. The mobility element of these instruments make a search necessary.

A warrant is not required to search vehicles if police have PC to believe the vehicle contains:

1. evidence of a crime,
2. the instrumentality of crime,
3. contraband, or the fruits of crime.

The police may inspect a container within an automobile if they have probable cause to believe the container has contraband or evidence, even where the police do not have PC to search the entire car.

Where PC to conduct a warrantless search exists, the police may search the entire vehicle, including closed containers and luggage, to find the objects for which the PC existed.

Question 24

What rules govern an automobile stop?

Answer 24

POs may not randomly stop a vehicle to check the license and registration without a reasonable suspicion of wrongdoing.

Checkpoints:

The police may stop traffic to check vehicle registration and licenses, as long as the stops: 1. are random; and 2. are based on some fixed formula, such as every vehicle or every fifth vehicle.

Sobriety or drunk-driving checkpoints are permissible.

General crime control checkpoints are not permissible.

Checkpoints to obtain information or search for a criminal are permissible.

Question 25

What is the plain view doctrine?

Answer 25

The police may seize property that is clearly visible in plain view without a warrant if:

1. the police are lawfully present at the place where the object can be seen;
2. the officers have a lawful right of access to the object; and
3. it is immediately apparent that the object is incriminating.

Police may not move objects to get a better view.

Question 26

What is consent?

Answer 26

It is a warrantless search where an individual waives his Fourth Amendment rights as long as that waiver is voluntary.

For consent, three elements are required:
1. voluntariness:

Voluntary and intelligent without coercion is necessary. It is a totality of the circumstances test.

It cannot be obtained by duress, fraud occurring when the police either claim to have a warrant or pose as repairmen, or coercion on the part of the police.

There can be implied consent like at airports and borders.

Consent can be revoked at any time.

2. proper scope:

The consenting party controls the scope of the search, and any conduct exceeding the scope of the consent is unlawful. Scope is determined by the explicit or implicit terms of the consent.

3. third party consent:

The person must have either actual or apparent authority to consent such as: truly may consent; or has apparent authority to consent.

Co-occupants do not have actual or apparent authority if there is reserved areas or rooms where the D has exclusive control.

A co-occupants refusal to a search request is controlling over himself and renders a warrantless entry and search.

Question 27

What are searches pursuant to a stop?

Answer 27

A stop is a momentary detention. A stop is a seizure so it must be reasonable.

Reasonable suspicion is required for a stop.

Question 28

What is hot pursuit exception?

Answer 28

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 weel as any contraband they find.

Police may enter and search a private dwelling while in reasonable pursuit of the fleeing suspect.

Question 29

What is exigent circumstances?

Answer 29

In certain emergencies, where evidence may be lost or destroyed before a warrant can be obtained, a warrantless search and seizure is permitted.

The police may conduct a warrantless search and seizure of evidence in or on a suspect’s body provided that:

1. there is PC 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.

Police may enter a home if they objectively have a reasonable belief that an occupant is in serious imminent harm.

Question 30

What is the administrative search exception?

Answer 30

Admin searches are conducted by an admin agency for the enforcement of the regulations granted to that specific agency, with a lesser showing of PC required.

Question 31

What is the border crossing exception?

Answer 31

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 PC.

Reasonable suspicion is required for an unusually intrusive search.

Question 32

What are some other search issues?

Answer 32

A warrant is required for wiretapping demonstrating:

1. PC has been shown that a crime has been or is being committed;
2. the warrant names the suspects and describes the particular conversation to be overheard; and
3. the wiretap is valid only for a brief period, after which time it will be terminated and the recorded conversations returned to the court.

Conversations are not privileged because listening to a conversation does not invade a person’s reasonable expectation of privacy if one of the persons is working for or with a government agent.