Fourth Amendment Evidentiary Search and Seizure Flashcards
Evidentiary search and seizure framework
- Is there government conduct?
-Police officer, government agent, private individuals acting at the direction of the police - Does the defendant have a Fourth Amendment right (standing) to object to the search or seizure?
-Based on a reasonable expectation or privacy - Did law enforcement have a valid warrant?
-Issued be a neutral and detached magistrate
-Warrant based on probable cause and particularity - Is there an exception to the warrant requirement?
-Search incidental to constitutional arrest
-Automobile exception
-Plain view
-Consent
-Stop and frisk
-Hot pursuit, evanescent evidence and emergency aid
Standing (reasonable expectation of privacy)
A person has a reasonable expectation of privacy any time:
-The person has a right to possession of the place search
-The place searched was in fact their home
-The person was an overnight guest of the owner of the place searched
-Sometimes when the person owns the property seized
A person does NOT a reasonable expectation of privacy:
-In objects held out to the public (i.e., cell-site location information, open fields, public airspace, odors coming for luggage/car, or garbage set out on the curb)
Valid search warrant
The two core requirements for a valid search warrant are:
(1) probable cause; and
-LE must submit an affidavit setting forth circumstances enabling the magistrate to make the probable cause determination
-Affidavit based on informer’s tip must pass TOC test (reliability, credibility, and basis for knowledge are all factors)
(2) particularity
-Warrant must describe with particularity the place to be searched and the items to be seized (allowed to anticipate when illegal items may be in the suspect’s home or office)
*A warrant may be obtained to search premises belonging to non-suspects, as long as there is probable cause to believe that evidence will be found there
Execution of search warrant
Only law enforcement may execute a search warrant and they cannot be accompanied by a third party unless she is identifying stolen property
-Cannot search persons not named in the search warrant
Police must known, announce their purpose, and wait a reasonable time for admittance unless announcing would be dangerous
-Violating the “knock and announce” rule alone will not result in the suppression of evidence
*Any contraband found in a valid search is admissible
Six exceptions to the warrant requirement
- Search incidental to constitutional arrest exception
- Automobile exception
- Plain view exception
- Consent exception
- Stop and frisk exception
- Hot pursuit, evanescent evidence, and emergency aid exception
Search incidental to constitutional arrest exception
Incident to an arrest based on probable cause, the police may contemporaneously search the persons and areas into which they might reach to destroy evidence or obtain weapons (within a person’s wingspan)
-Police can also make protective sweep
-Police can search a vehicle after securing the occupant into the squad car
-Police can search impounded car/arrestee’s belongings
Gant rule (passenger compartment)
Police may search the passenger compartment of an automobile incident to arrest only if at the time of the search:
(1) the arrestee is unsecured and still may gain access to the interior of the vehicle; or
(2) the police reasonable believe that evidence of the offense for which the person was arrested may be found in the vehicle
DUI arrest
Justifies breathalyzer without a warrant, but not a blood test without a warrant
Cell phones
A cell phone’s physical attributes can be searched without a warrant, but its contents/data may not be searched without a warrant
Automobile exception
If police have probable cause to believe that the vehicle contains evidence to a crime, they can search the whole vehicle and any containers that might reasonably contain the item for which they had probable cause to search for (i.e., cannot search six inch box when only PC for stolen TVs)
-Except when vehicle is parked within curtilage of suspect’s home
-Probable cause can arise after the car is stopped, but before anything is searched
Plain view
Police can make a warrantless seizure when they:
(1) are legitimately (have lawful right to be) on the premises;
(2) discover evidence;
(3) see such evidence in plain view; and
(4) it is immediately apparent that the item is evidence
Consent
A warrantless search is valid if the police have voluntary consent
-Scope extends to all areas to which a reasonable person under the circumstances would believe it extends
-Police saying they have a warrant negates consent
-Any person with an apparent right to use or occupy can give consent unless another occupant is present and objects to the search
>But police can get consent if the objector is removed for a reason unrelated to refusal (i.e., a lawful arrest)
Stop and frisk (Terry) exception
Stop: a brief detention for the purpose of investigating suspicious conduct
-Police may stop a person without probable cause for arrest if they have articulable and reasonable suspicion of criminal activity
Frisk: a pat-down of OUTER clothing and body to check for weapons
-Officer must reasonably believe that the person may be armed and presently dangerous
-Limited to outer clothing unless specific information at a weapon is hidden in a particular area of the suspect’s clothing
-May seize weapons or contraband based on “plain feel” (not manipulated)
Hot pursuit, evanescent evidence, and emergency aid exception
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the subject into a private dwelling
-Hot pursuit = within 15 minutes
Evanescent (“fleeting”) evidence is evidence that might disappear quickly if the police took time to get a warrant
Emergency aid: a police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public
Administrative inspections and searches
The following warrantless searches have been upheld:
-Searches of airline passengers prior to boarding
-Drug tests of public school students who participate in extracurricular activities (even school dances and chess club)
