FOURTH AMENDMENT—EVIDENTIARY SEARCH AND SEIZURE Flashcards
1
Q
FOURTH AMENDMENT—EVIDENTIARY SEARCH AND SEIZURE
A
- Like arrests, evidentiary searches & seizures must be reasonable to be valid under 4th am, but here reasonableness requires a warrant except in 6 circumstances.
- Evidentiary search & seizure issues should be
approached using this analytical model:
(1) Was there a seizure by Gov concerning a place/thing in which D had REOP/does search involve a physical intrusion into constitutionally protected area?
(2) Did police have valid warrant (issued by neutral & detached magistrate on a showing of PC & reasonably precise as to place to be searched & items to be seized)?
(3) If police did not have valid warrant, was search/ seizure w/in one of 6 exceptions to warrant requirement?
2
Q
GOVERNMENTAL CONDUCT
A
- 4th am generally protects only against governmental conduct (police, other gov agents, or private individuals acting at direction of public police).
- It does not protect against searches by privately paid police unless they are deputized as officers of public police.
- Exs of privately paid police: store security guards, subdivision police, & campus police.
2
Q
REASONABLE EXPECTATION OF PRIVACY
A
- 2 ways in which searches & seizures can implicate individual’s 4th am rights:
(1) search/seizure by gov agent of constitutionally protected area in which individual had REOP; or
(2) physical intrusion by gov into constitutionally protected area to obtain info.
3
Q
Standing
A
- Person must have standing to object to governmental search.
- To have 4th am right, person must have their own REOP w/ respect to place searched/item seized.
- Determination is made on TOC, but person has a REOP any time:
(1) Person owned/had right to possession of place searched
(2) Place searched was in fact their home, whether/ not they owned/had right to possession of it (ex. grandchild living at grandparent’s home); or
(3) Person was an overnight guest of owner of place searched - Important “sometimes” category of standing:
- Person owns property seized. If a person owns property seized, they have standing only if they have REOP in item/area searched
4
Q
Things Held Out to the Public
A
- Person does not have REOP in objects held out to the public.
- Generally, includes info in hands of 3rd parties (ex. bank account records).
- However, person does have a REOP in personal location info derived from cell phone data which is stored in hands of 3rd parties.
- Things held out to the public, seizure of which implicates no right to privacy:
(1) Sound of your voice
(2) Style of your handwriting
(3) Paint on the outside of your car
(4) Account records held by bank
(5) Location of car on public street/in a driveway - Note: Installation of GPS device on suspect’s car constitutes search
(6) Anything that can be seen across open fields
(7) Anything that can be seen from flying over public
airspace
(8) Odors coming from luggage/car; and
(9) Garbage set out on curb for collection - Note: Use of sense-enhancing technology that is not
in general public use (ex. thermal imager as opposed to telephoto camera lens) to obtain info from inside suspect’s home that could not otherwise be obtained w/o physical intrusion violates suspect’s expectation of privacy. - Officers may not covertly & trespassorily place GPS tracking device on person’s car w/o warrant.
5
Q
SEARCHES CONDUCTED PURSUANT TO A
WARRANT
A
- Generally, officers must have warrant to conduct search unless it falls w/in one of 6 exceptions to warrant requirement.
- 2 core requirements for facially valid search warrant: probable cause & particularity.
6
Q
Showing of Probable Cause
A
- Warrant will be issued only if there is PC to believe that *seizable evidence will be found on the person/ premises at time warrant is executed. *
- Officers must submit to a magistrate an affidavit setting forth circumstances enabling magistrate to find PC independent of officers’ conclusions.
7
Q
Use of Informers
A
- Affidavit based on informer’s tip must meet TOC
- TOC: informant’s reliability & credibility/their basis for knowledge are relevant factors
- Note that informer’s identity generally need not be revealed.
8
Q
Going “Behind the Face” of the Affidavit
A
- Search warrant issued on basis of affidavit is invalid if D establishes all 3:
(1) False statement was included in affidavit by affiant (officer applying for warrant)
(2) Affiant intentionally/recklessly included false statement; and
(3) False statement was material to finding of PC
9
Q
Tip
A
This test for invalidating affidavit is very restrictive— all 3 requirements for invalidity (falsehood, intentionally/recklessly included, & material to PC) must be met. Thus, if affiant believed the lie, or if they intentionally included the lie but it was not material to finding PC (b/c there was sufficient other evidence), affidavit is valid. Therefore, D is rarely successful in challenging the affidavit.
10
Q
Police May Reasonably Rely on Validity of Warrant
A
Evidence obtained by police in reasonable reliance on a facially valid warrant may be used by prosecution, despite an ultimate finding that warrant was not supported by PC
11
Q
Tip
A
This good faith exception applies only if police obtained warrant & it is invalid. Does not apply if police failed to obtain a warrant.
12
Q
Warrant Must Be Precise on Its Face
A
- Warrant must describe w/ particularity place to be searched & items to be seized. If it does not, warrant is unconstitutional, even if underlying affidavit gives such detail.
13
Q
Warrant May Be Anticipatory
A
- Warrant can predict when illegal items may be in a
suspect’s home/office. - Items need not be on premises at time warrant is issued.
14
Q
Search of Third-Party Premises Permissible
A
- Warrant may be obtained to search premises belonging to nonsuspects, if there is PC to believe that evidence will be found there.
