Fourth Amendment: Evidentiary Search and Seizure

Question 1

What is the general rule re: 4th amendment and evidentiary search and seizures?

Answer 1

• Like arrests, evidentiary searches and seizures must be REASONABLE to valid under 4th Amendment
• Unlike arrests, reasonableness requires a warrant except in 6 circumstances:

1. search incident to arrest
2. automobile search
3. plain view
4. consent
5. stop and frisk
6. hot, exigent circumstances, evanescent evidence, emergency aid

Question 2

Describe the analytical model you should use to determine whether an evidentiary search and seizure is reasonable?

Answer 2

1. Does D have a 4th amendment right?
   (i) search or seizure by gov into place/thing in which D had a “reasonable expectation of privacy; OR
   (ii) physical intrusion into constitutionally protected area
2. did police have a VALID WARRANT
   - issued by a NEUTRAL and DETACHED magistrate
   - supported by PC and REASONABLY PRECISE as to PLACES to be searched and ITEMS to be seized
3. if they DID NOT have a warrant, did search fall into one of 6 exceptions
   (i) search incident to arrest
   (ii) automobile exception
   (iii) plain view
   (iv) consent
   (v) stop and frisk
   (vi) hot pursuit, exigent circumstances, evanescent evidence, emergency aid

Question 3

What is the rule re: 4th amendment and government conduct?

Answer 3

-4th amendment is ONLY implicated against gov conduct, not searches by private persons

EXCEPTION –> if person is deputized as officer by the police

Question 4

What are the two ways in which searches/seizures can implicate one’s 4th amendment rights?

Answer 4

1. Physical intrusion into constitutionally protected area;

2. search or seizure of area/thing in which person had a “reasonable expectation of privacy”

Question 5

What is the rule w/ regards to 4th amendment searches/seizures and standing?

Answer 5

To have standing, the person must have a “REASONABLE EXPECTATION OF PRIVACY” it area searched or item seized.

Question 6

When does a person have a “reasonable expectation of privacy” with regards to area searched or item seized?

Answer 6

IN general –> determination is made based on TOTALITY of the circumstances

HOWEVER, there IS a REASONABLE EXPECTATION of privacy IF:

1. he OWNED or had RIGHT TO POSSESSION of place searched;
2. the place to be searched was in fact his HOME, whether or not he owned or had a right to possession of it
3. he was an OVERNIGHT GUEST of the of owner of place searched

Question 7

When is there NO reasonable expectation of privacy?

Answer 7

There is NO reasonable expectation of privacy in things held out to the public

Examples:

1. sound of one’s own voice
2. handwriting
3. paint on outside of vehicle
4. account records held by bank
5. Areas outside of the home and related buildings (curtilage) such as a barn
6. garbage
7. land visible from public place, even plane or helicopter
8. smell of one’s car or luggage (“sniff test”)
9. use of sense-enhancing technology that is not in general public use to obtain info from inside suspect’s home that couldn’t otherwise be obtained without physical intrusion violates suspects legitimate expectation of privacy
10. Police may not covertly and trespassorily place GPS tracking device on car without warrant

Question 8

What is the rule if evidence is obtained in a manner that shocks the conscience?

Answer 8

• inadmissible under due process clause.

Reasonableness of searches within a person’s body is determined by balancing:

• Society’s need; AGAINST
• Magnitude of intrusion

EXAMPLES –> taking blood sample is usually upheld, surgery (ie..to remove bullet) requires great need