Fourth Amendment - Evidentiary Search and Seizure

Question 1

Search and Seizure Question Framework

Answer 1

1. Does the D have a 4th Amendment right (seizure by the government concerning a place or thing in which D had a reasonable expectation of privacy) or does the search involve a physical intrusion into a constitutionally protected area?
2. Did the police officers have a valid warrant (issued by a neutral and detached magistrate on a showing of PC and reasonably precise as to the place to be searched and items to be seized)?
3. If the police did not have a valid warrant, was the search or seizure within one of the six exceptions to the warrant requirement?

Question 2

Governmental Conduct

Answer 2

4th Amend generally protects only against governmental conduct - that is police, other government agents, or private individuals actin at the direction of the public police.

It does not protect against searches by privately paid police unless they are deputized as officers of the public police.

Question 3

Reasonable Expectation of Privacy

Answer 3

First way that governmental officials can implicate 4th amend rights of a search and seizure.

Question 4

Standing

Answer 4

A person must have standing to object to a governmental search. To have a 4th Amend right, a person must have their own reasonable expectation of privacy with respect to the place searched or the item seized. The determination is made on the totality of the circumstances, but a person has a reasonable expectation of privacy anytime:

1. the person owned or had a right to possession of the place searched
2. the place searched was in fact their home, or
3. The person was an overnight guest of the owner of the place searched.

Question 5

Things held out to the public

Answer 5

A person does not have a reasonable expectation of privacy in objects held out to the public.

They do have a reasonable expectation of privacy in their cell-site location information which is stored in the hands of 3P.

Question 6

Things that implicate no right to privacy

Answer 6

Sound of your voice

style of your handwriting

paint on the outside of your car

account records held by a bank

location of you car on a public street or in a driveway

anything that can be seen across the open fields

anything that can be seen from flying over public airspace

the odors emanating from your luggage or car; and

Garbage set out on the curb for collection

Question 7

Sense enhancing Technology

Answer 7

Use of sense enhancing technology that is not in general public use to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion violates the suspect’s legitimate expectation of privacy.

Question 8

Searches Conducted Pursuant to a Warrant: Showing of PC

Answer 8

a warrant will be issued only if there is pc to believe that seizable evidence will be found on the person or premises at the time the warrant is executed.

Question 9

Searches Conducted Pursuant to a Warrant: Showing PC - Use of Informers

Answer 9

An affidavit based on an informer’s tip must meet the totality of the circumstances test.

Under the test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination.

Question 10

Searches Conducted Pursuant to a Warrant: Showing PC - Going “Behind the Face” of the Affidavit

Answer 10

A search warrant issued on teh basis of an affidavit will be held invalid if the D establishes all three of the following:

1. a false statement was included int eh affidavit by the affiant
2. the affiant intentionally or recklessly included the false statement; and
3. the false statement was material to the finding of PC

Question 11

Searches Conducted Pursuant to a Warrant: Warrant must be Precise on Its Face

Answer 11

A warrant must describe with particularity the place to be searched and items to be seized.

If it does not, the warrant I s unconstitutional even if the underlying affidavit gives such detail.

Question 12

Searches Conducted Pursuant to a Warrant: Warrant may be anticipatory

Answer 12

A warrant can predict when illegal items may be in a suspects home or office. The items need not be on the premises at the time the warrant is issued.

Question 13

Searches Conducted Pursuant to a Warrant: Search of 3P Premises Permissible

Answer 13

A warrant may be obtained to search premises belong to non-suspects, as long as there is PC to believe that evidence will be found there.

Question 14

Searches Conducted Pursuant to a Warrant: Execution of Warrant

Answer 14

Only police may execute

no 3P unless identifying stolen property

violation of knock and announce rule will not result in suppression of evidence.

Question 15

Searches Conducted Pursuant to a Warrant: Execution of Warrant - Search of Person Found on Searched Premises

Answer 15

A warrant to search for contraband authorizes the police to detain occupants on the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.

If a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a terry pat down for weapons.