Fourth Amendment: Application to Arrest, Search and Seizure

Question 1

What does the 4th Amendment protect against?

Answer 1

Protects persons against unreasonable arrests or other seizures as well as unreasonable searches, and it is applicable to the states through the 14th Amendment.

Question 2

Does the 4th amendment protect against searches of students from public officials?

What is the level of suspicion needed to conduct a search of a student?

Answer 2

Yes, it prohibits unreasonable searches of students conducted by public school officials.

But to help maintain a safe learning environment, the level of suspicion needed to justify a search is relaxed in school settings.
-> Therefore, school officials acting independent of law enforcement need only reasonable suspicion that a student is violating (or has violated) the law or school rules—not a warrant or probable cause—to conduct a search of that student

Question 3

What does a D need to assert a 4th Amendment violation against governmental conduct?

Answer 3

D requires standing via
-> D has been seized
OR
-> D has a reasonable expectation of privacy regarding the place searched or item seized

Note: if D moves out a place where the the current resident consents to the plan being searched, D doesn’t have standing.

This allows D to assert claim.

Question 4

What is the exclusionary rule?

Answer 4

Prevents introduction at a subsequent criminal trial of evidence unlawful seized

Question 5

In which situations does the exclusionary rule not apply?

Answer 5

It doesn’t apply in the following situations
-> to federal habeas corpus review (proceedings reviewing the rights of prisoners during their trial and sentencing)
-> grand jury proceedings
-> preliminary/bail/sentencing hearings
-> proceedings to revoke parole
-> evidence used as impeachment evidence against the D
-> civil proceedings

Question 6

Who makes the decision regarding suppression of evidence?

Answer 6

Suppression decisions are made by the judge

Question 7

What is the standard of review for
-> factual findings
-> findings of law

Answer 7

Factual errors are reviewed for clear error.

Findings of law are reviewed de novo.

Question 8

What three groups of people fall under “governmental conduct”?

Answer 8

Publicly paid police
Private person directed by police
Deputized private police

Question 9

Do private citizens fall under people against who the 4th Amendment tries to protect from?

Answer 9

The Fourth Amendment limits government actors. It does not limit private individuals acting on their own behalf without the government’s knowledge or participation (e.g., concerned citizens, vigilantes).

Question 10

What is the “reasonable expectation of privacy” linked to?

Answer 10

Linked to the place searched and the item seized.

Question 11

What is the definition of a seizure?

Answer 11

When police by means of physical force/show of authority, intend to terminate/restrain freedom of movement.

Question 12

When is seizure said to have occurred via the totality of circumstances?

Answer 12

If police intent to restrain is ambiguous OR if D’s submission is only passive acquiescence THEN a seizure occurs IF totality of circumstances would lead reasonable innocent person to believe he is not free to leave.

Question 13

What is the definition of a “stop and frisk”?

Answer 13

Temporary detention that constitutes seizure IF the officer, by means of physical force/show of authority, has in some way restrained (physical restraint or an order to stop) the liberty of a citizen.

Question 14

What is an arrest warrant?

Answer 14

Must be issued by detached/neutral magistrate upon finding of probable cause (PC) and describe with particularity the D and crime

Question 15

When can a police officer enter an arrestee’s home to serve an arrest warrant?

When can a police officer enter a third-person’s home to serve an arrest warrant?

Answer 15

An arrest warrant implicitly authorizes entry into the arrestee’s home to serve the warrant if police have reason to believe that the arrestee is present.

But police may enter a third party’s home to execute an arrest warrant only when they have:
-> a warrant authorizing the search of the home
-> exigent circumstances
OR
-> the third party’s consent to enter the home.

Question 16

When is an arrest illegal in a third party’s home regarding an arrest warrant?

What is the legal ramification of such an illegal arrest?

Answer 16

When none of the three conditions are met.

An illegal arrest does not prevent the subsequent prosecution of the arrestee—so long as the arrestee was properly charged, but can impact the introduction of any seized evidence during the illegal arrest.

Question 17

Does a deficient warrant invalidate an arrest?

Answer 17

Deficient warrant does not invalidate arrest as long as there was probable cause (no warrant required for proper arrest based on PC) AND it was done in PUBLIC.

Question 18

What is a search warrant?

Answer 18

-> Issued by detached/neutral magistrate
-> upon finding of PC,
-> supported by oath or affidavit,
AND
-> must describe with particularity places to be searched and items to be seized (reasonable belief that contraband will be bound)

Question 19

What are the facts that support probable cause?

Answer 19

-> officer’s personal observations
-> information from reliable, known informant or verified unknown informant
-> evidence seized during stop and based on reasonable suspicion, discovered in plain view, OR during consensual search

Question 20

What does “particularity” mean for warrants?

Answer 20

Must specify place to be searched and objects to be seized.

Can also refer to contraband as “other fruits, instrumentalities, or evidence of crime at this time unknown” and still be valid.

Question 21

What is an anticipatory search warrant?

Does it still need to meet all the requirements of a regular search warrant?

Answer 21

A warrant that becomes effective only upon the occurrence of a triggering condition.

Yes.

Question 22

How is the probable cause requirement met in an anticipatory search warrant?

Answer 22

The probable cause requirement is met if:
-> at the time of issuance, there is probable cause to believe that the triggering condition will occur
AND
-> if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found at the place to be searched.

Question 23

What is the “plain view” doctrine under a search warrant?

Answer 23

Under the Fourth Amendment, a search warrant confers authority to search only the places and persons named therein.

However, the “plain view” doctrine gives an officer properly executing a warrant the authority to seize evidence not particularly described therein if:
-> the officer is lawfully on the premises
-> the incriminating character of the item is immediately apparent
AND
-> the officer has lawful access to the item.

Question 24

Does a search warrant allow the police to search all people present on the premises during election of the warrant?

How can police search non-named persons on a search warrant who happen to be on the premises at the moment the search warrant is being carried out?

Answer 24

When executing a warrant, police may not lawfully search a person who is on the premises—but is not named in the warrant—without independent justification for that search.

Independent justification may come from:
-> reasonable suspicion that the person is armed, which allows officers to pat down the person’s outer garments
OR
-> probable cause to believe that the person committed, is committing, or is about to commit a crime.

Question 25

What is knock and announce rule?

Does violation trigger the exclusionary rule?

Answer 25

Police must generally announce purpose when executing a warrant (unless state allows exception for exigent circumstances).

No it does not.

Question 26

When is a warrantless arrest valid?

Does an invalid arrest a defense to the crime charged? Does it impact anything?

Answer 26

Arrest warrant not needed in public place or for felony or misdemeanor in arresting party’s presence.

No an invalid arrest is not a defense to crime charged (but will affect any seizure of evidence).

Question 27

How is it determined whether a rime has been committed for a warrantless arrest?

Answer 27

The question is whether an officer could conclude - considering all of the surrounding circumstances - that there was a substantial chance of criminal activity.

Question 28

Who carries out government conduct under a search and seizure?

Answer 28

Search must be by government employee or agent.

Question 29

Does a D have a reasonable expectation of privacy in their home, a private room, or office?

Is the use of a drug-sniffing dog an intrusion on such protected area?

Answer 29

Yes it includes
-> home and curtilage, motel rooms, and business premises are protected

Yes if the drug-sniffing dog is a search if it physically intrudes onto constitutionally protected property

Question 30

Does a D have a reasonable expectation of privacy in their luggage?

Answer 30

Yes D has REP for invasive searches BUT not for canine sniffs.

Question 31

Does D have a reasonable expectation of privacy in their automobile?

What does an officer need to effectuate a stop of the automobile? And to investigate whether another law has been violated?

Answer 31

Yes they do.

Cop
->Needs reasonable suspicion of law violation to effectuate a stop
-> Needs PC to do a pretextual stop when a traffic law is violated TO investigate whether another law has been violated

Question 32

When is a checkpoint stop valid absent invidious suspicion?

Answer 32

However, a checkpoint that serves a special law enforcement need unique from the general interest in crime control can justify an automobile stop absent individualized suspicion.

Question 33

When is a checkpoint stop considered reasonable?

Answer 33

In Illinois v. Lidster, the Supreme Court held that a checkpoint at which motorists were stopped so that officers could ask for information about a specific crime committed on that roadway was reasonable because:
-> the stop’s primary law enforcement purpose was to elicit evidence to help police apprehend individuals other than the vehicle’s occupants (here, to apprehend a murderer)
-> the stop significantly advanced a public concern (here, solving a murder)
AND
-> the police tailored the checkpoint to fit important criminal investigatory needs and to minimally interfere with Fourth Amendment rights (here, the checkpoint stops were brief)

Question 34

Is evidence of a crime discovered at a reasonable checkpoint stop admissible?

Answer 34

Evidence of a crime (e.g., driving while intoxicated) discovered during a reasonable checkpoint stop is admissible at a subsequent trial.

Question 35

Does the fact that a person in lawful possession of a rental car that is not listed on the rental agreement have an impact to that person’s REP?

Answer 35

No it does not impact their REP.

Question 36

Does D have reasonable expectation of privacy in open areas?

Answer 36

No reasonable (objective) expectation of privacy in open areas and with outside curtilage.

Question 37

Does a D have REP with odor from car?

Answer 37

No, D has not REP with odor from car.

Question 38

What is considered a search with technological device?

Answer 38

-> attaching a tracking device to a person without consent
-> collecting cell-site location information from a. wireless carrier to track a person is a search and requires a warrant
-> physically introducing on a suspect’s property to install a technological device may be a search
-> use of sense-enhancing devices not used by general public is a search

Question 39

What must the search incident to lawful arrest with regard to a warrantless arrest be?

Answer 39

The search incident to lawful arrest must be reasonable in scope and incident to a lawful arrest.

Question 40

What is the wingspan rule (exception to search warrant requirement) with regard to a valid warrantless arrest?

Answer 40

It allows an officer to include a contemporaneous search of person and immediate surrounding area including pockets and containers.

The vehicle may also be searched IF it is reasonable to believe that evidence of the crime may be found therein, if there is no such reasonable belief then you can’t search the car.

Question 41

What kinds of searches does the wingspan rule not include?

Answer 41

Does not include cell phone or laptop searches unless exigent circumstances exist.

Question 42

When can a home be searched without a search warrant?

Answer 42

If the arrest occurs in a home then a “protective sweep” is permissible, even without probable cause or reasonable suspicion.

Such a search includes
-> places immediately adjoining place of arrest in home from which an attack could be launched and in which a person might be hiding (adjacent rooms, closets, showers).

The search can be broadened if based on reasonable suspicion that confederates (i.e. people who might launch an attack) are hiding beyond these immediately adjacent areas.

Question 43

When is the search of a vehicle without a search warrant justified?

Answer 43

Search of vehicle is justified if
-> arrestee is within reaching distance of passenger compartment (weapons/evidence) during search
OR
-> it is reasonable that evidence of the offense of arrest might be in vehicle

Question 44

is the entry into a home or business without a warrant lawful?

When can it be lawfuL?

Answer 44

It is deemed unlawful.

It can be lawful if the government demonstrates both
-> probable cause
AND
-> exigent circumstances

Question 45

What are the three examples of an exigent circumstance?

Answer 45

Totality of circumstances test
Hot pursuit
Emergency

Question 46

How do courts determine the existence of exigent circumstances?

Answer 46

Courts use the “totality of circumstances” test

Question 47

When does the exigent-circumstances rule not apply?

Answer 47

Does not apply when the police create the exigency by engaging or threatening to engage in conduct that violates the 4th Amendment.

Question 48

How does the “hot pursuit” rule work as an exception to a search warrant requirement?

Answer 48

Police in pursuit of a suspect can seize “mere” evidence (not fruit / instrumentalities of crime) from a private building if they have PC to believe the suspect committed a felony.

May also act without warranty if they have PC that suspect committed a misdemeanor and the totality of the circumstances show an emergency.

Question 49

How does an emergency work as an exception to a search warrant requirement?

Answer 49

Reasonable apprehension that delay in getting warrant would result in immediate danger
-> of evidence destruction,
-> to police/public safety
OR
-> of fleeing felon

Question 50

What is a stop (aka a Terry stop)?

Answer 50

It happens when officer has a reasonable suspicion (from totality of circumstances), based on articulated facts that detainees involved in illegal activity, and a stop is a limited/temporary intrusion on D’s freedom of movement.

Question 51

When can an officer frisk someone?

Answer 51

An officer without probable cause may pat down a person’s outer clothing if the officer has reasonable suspicion that the suspect was/is involved in criminal activity and that the frisk is necessary for safety.

Question 52

What is the “plain feel” exception under a frisk?

Answer 52

If officer conducting a valid frisk feels an object whose identify is immediately obvious (i.e. PC of contraband) then it can be seized.

Question 53

When can a police officer search a passenger compartment under a Terry stop?

Answer 53

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons IF
-> the police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons
AND
-> the search of the passenger compartment is “limited to those areas in which a weapon may be palaced or hidden”

Question 54

What is the limitation on a stop and frisk? When can a stop and frisk become a full search?

Answer 54

The stop and frisk must be the least intrusive means reasonably available to frisk for weapons only, BUT if suspicion becomes PC, then officer can make arrest and conduct a full search.

Question 55

When can the police search an automobile without a search warrant?

What limitation is there on this rule?

Answer 55

Police can search any part of a car (compartments, particular container such as luggage within car, trunk, etc…) IF
-> PC that it contains contraband/evidence of crime
-> NOTE: they can only search areas of the car where they believe the contraband/evidence is hidden

Does not permit
-> warrantless entry of home or curtilage in order to search a vehicle therein.
-> does not justify a warrantless search of a person who is, or had been, a passenger in the vehicle. Police must have probable cause to believe that evidence is on the passenger before searching the passenger.

Question 56

What is the plain-view doctrine which is an exception to the search warrant requirement?

Answer 56

If something is in public view, then there is no REP.

If something is in private view then officer can only search item IF
-> officer on premises for lawful purpose
AND
-> the item is of an incriminating nature and this is immediately apparent
AND
-> officer has lawful access to the item.

Question 57

Are police flyovers a violation of one’s 4th Amendment rights?

Answer 57

Police flyovers are not Fourth Amendment searches since
-> aerial observations are not physical intrusions (e.g. by flying navigable public air space (a height of at least 400 feet for helicopters)
AND
-> a person has no reasonable expectation of privacy in items and areas exposed to public view.

Question 58

When can a voluntary consent be an exception to the search warrant requirement?

Answer 58

No threats of harm, compulsion, or false assertion of lawful authority (totally of circumstances).

BUT government agent may pretend to be someone else.

Question 59

When can a third party consent to a property search of D’s property?

Answer 59

Normally third party can only consent to own property search

BUT they can consent to search of D’s property only if there is
-> an agency relationship to D
OR
-> D assumes the risk of search when giving right to third party to consent to search

Question 60

What are the requirements needed for a warrant authorizing wiretapping?

Answer 60

The requirement are:
-> limited period of time
-> PC that a specific crime has been or is about to be committed
-> Identify persons and describe particular conversations to be tapped
-> when to terminate tapping
-> reveal interested conversation to court

Question 61

What must D show that the search violated his rights under the 4th Amendment?

Answer 61

D must show legitimate expectation of privacy with regard to the search.

Question 62

How does the exclusionary rule relating to searches and seizures work under the idea of “fruit of the poisonous tree”?

Answer 62

Applies not only to evidence initially seized as a result of government illegality but also to secondary derivative evidence resulting from primary taint.

Question 63

What are the exceptions to the exclusionary rule?

Answer 63

If one of the exceptions apply then evidence may be admissible even if tainted in the primary or derivative.

The exceptions are:
-> inevitable discovery
-> independent source
-> attenuation
-> good faith
-> isolated police negligence
-> knock and announce
-> In-court ID

Question 64

How does the following exception to the exclusionary evidence rule work?
-> inevitable discovery
-> independent source
-> attenuation

Answer 64

Inevitable discovery
-> evidence would have been discovered in the same condition even if it was done through lawful means

Independent source
-> the evidence was discovered in a manner that was unrelated to the tainted evidence

Attenuation
-> the passage of time or an intervening event may purge the primary taint

Question 65

How does the following exception to the exclusionary evidence rule work?
-> good faith

When does this exception not apply?

Answer 65

Applies to policy relying in objective good faith on either
-> facially valid warrant later found invalid
OR
-> existing law later held to be unconstitutional.

Exception doesn’t apply
-> if no reasonable officer would rely on affidavit underlying warranty
-> warrant is defective on its face
-> warrant obtained by fraud
-> magistrate wholly abandons judicial role
OR
-> warrant improperly executed

Question 66

How does the following exception to the exclusionary evidence rule work?
-> isolated police negligence
-> knock and announce
-> in-court ID

Answer 66

Isolated police negligence
-> not enough to trigger the exclusionary rule; must be sufficiently deliberate that application of the exclusionary rule can meaningful deter it

Knock and announce
-> exclusionary doesn’t apply when police fail to knock and announce their presence

In-court ID
-> witness’s in-court ID of a D is not fruit of an unlawful detention so isn’t excluded under the rule

Question 67

What happens if the trial court wrongfully admitted illegally seized evidence?

Is there a time where the above answer wouldn’t happen? Under what circumstance?

Answer 67

Normally a new trial would be ordered

BUT

The appellate court can refuse to order a new trial if it finds that the error was harmless beyond a reasonable doubt, meaning that the erroneously admitted evidence did not contribute to the result.