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Crim Pro > FOURTH AMENDMENT— EXCEPTIONS TO THE WARRANT REQUIREMENT > Flashcards

FOURTH AMENDMENT— EXCEPTIONS TO THE WARRANT REQUIREMENT Flashcards

1
Q

FOURTH AMENDMENT— EXCEPTIONS TO THE WARRANT REQUIREMENT

A

All warrantless searches conducted by officers are unconstitutional unless one of six exceptions to warrant requirement applies

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2
Q

SEARCH INCIDENT TO CONSTITUTIONAL
ARREST

A
  • Incident to con arrest (one based on PC to believe law has been violated & meets other con reqs), police may search person & areas into which they might reach to obtain weapons/destroy evidence.
  • Police may also make protective sweep of area if they believe accomplices are present.
  • Search must be contemporaneous in time & place w/ arrest, but, at least for car searches “contemporaneous” does not necessarily mean “simultaneous.”
  • Thus, for ex., police may search interior of car after securing recent occupant of car in a squad car if they have reason to believe car contains evidence of crime for which recent occupant was arrested.
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3
Q

Constitutional Arrest Requirement

A

If an arrest is unconstitutional, any search incident to that
arrest is also unconstitutional

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4
Q

Geographic Scope

A

What can be searched? Person & areas w/in person’s wingspan.

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5
Q

Automobiles

A
  • Police may conduct a search of passenger compartment of car incident to arrest only if at time of search:
    (1) Arrestee is unsecured & still may gain access to car’s interior; or
    (2) Police reasonably believe evidence of offense for which person was arrested may be found in car
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6
Q

“Technological Searches”

A
  • In assessing validity of SIA involving things that did not exist when 4th am was adopted (ex. cell phones, blood alcohol tests), ct will balance intrusion on person’s privacy against necessity of SIA to promote legit governmental interests.
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7
Q

DUI Arrest Justifies Breath (But Not Blood) Test

A
  • Contemporaneous w/ arrest for intoxicated driving, police may administer warrantless breath test but not warrantless blood test.
  • Violation of an implied consent law (law providing that by driving on roads driver impliedly consents to blood test if stopped for intoxicated driving) can be punished civilly (ex. suspension of license) but not criminally.
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8
Q

Physical Attributes of Cell Phone May Be Searched
But Not Data

A
  • Police may examine physical attributes of person’s cell phone upon arrest but not cellphone data
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9
Q

Search Incident to Incarceration or Impoundment

A
  • At police station, police may make inventory search of arrestee’s belongings
  • Police may make inventory search of impounded car
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10
Q

AUTOMOBILE EXCEPTION

A
  • If police have PC to believe a car contains fruits, instrumentalities, or evidence of a crime, they may search whole vehicle & any container that might reasonably contain item for which they had PC to search.
  • If warrantless search of car is valid, police may tow car to station & search it later.
  • If car is parked w/in the curtilage (ex. driveway) of suspect’s home, police may not search car w/o warrant.
  • Note: If police have PC to believe a car itself is contraband, they may seize it from a public place w/o warrant.
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11
Q

Tip

A

Police have fairly broad authority to search a car depending on what they are looking for. If there is PC to search car, police can search entire car & anything in it that might contain the evidence. Thus, if they are looking for evidence of illegal drugs, they can look in almost anything in the car, but if they are looking for undocumented aliens, they cannot look inside a small suitcase.

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12
Q

Passenger’s Belongings

A
  • Search may extend to packages belonging to passenger; not limited to driver’s belongings
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13
Q

Containers Placed in Vehicle

A
  • If police have PC only to search a container in a car (ex. luggage recently placed in trunk), they may search only container, not other parts of car
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14
Q

PLAIN VIEW

A
  • Police may make warrantless seizure when they:
    (1) Are legitimately on premises
    (2) Discover evidence, fruits or instrumentalities of crime, or contraband
    (3) See such evidence in plain view; and
    (4) Have PC to believe (it must be immediately apparent) that item is evidence, contraband, or a fruit or instrumentality of crime
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15
Q

Tip:

A

For this exception, be sure officer is legitimately on premises (where they have lawful right to be), such as on public sidewalk/in a home executing a warrant. If officer is, anything officer sees (smells, hears, etc.) in plain view is admissible. Thus, if while executing a search warrant for a handgun, officer opens a small drawer where gun could be & sees heroin, heroin is admissible since it was in plain view of officer who had right to look there.

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16
Q

Consent

A
  • Warrantless search is valid if police have voluntary consent.
  • Knowledge of right to w/hold consent is not a prerequisite to establishing voluntary consent.
  • Scope of search may be limited by scope of consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.
17
Q

Authority to Consent

A
  • Any person w/ apparent equal right to use/occupy property may consent to search, & any evidence found may be used against other owners/ occupants.
  • However, occupant cannot give valid consent to search when co-occupant is present & objects to search & search is directed against co-occupant.
  • If co-occupant has objected to a search & is removed for reason unrelated to refusal (ex. lawful arrest), police may act on consent of remaining occupant, even if removed co-occupant had refused consent.
18
Q

Tip

A

Exam questions on validity of warrantless searches often suggest consent as a choice, especially consent of someone other than D Be careful to check whether person has reasonably apparent authority to consent. Ex. a homeowner parent can certainly consent to a search of home’s kitchen, & probably to search of their son’s room unless facts strongly indicate that parent does not have a right to go in room (ex. always locked, only D has key, etc.). Note: Not yet decided whether parent may consent over objection of their child.

19
Q

STOP AND FRISK

A
  • Terry stop: brief detention for purpose of investigating suspicious conduct.
  • Terry frisk: patdown of outer clothing & body to check for weapons.
20
Q

STOP AND FRISK: Standards

A
  • Officer may stop person w/o PC for arrest if they have an articulable & reasonable suspicion of criminal activity.
  • Officer may require detainee to state their name, & if officer also reasonably believes person may be armed & presently dangerous, officer may do a protective frisk.
21
Q

STOP AND FRISK: Scope of Intrusion

A
  • Scope of frisk is generally limited to patdown of outer clothing, unless officer has specific info that a weapon is hidden in a particular area of suspect’s clothing
22
Q

STOP AND FRISK: Admissibility of Evidence

A
  • During a patdown, officer may reach into suspect’s clothing & seize any item that officer reasonably believes, based on “plain feel,” is a weapon/ contraband, & items are admissible as evidence.
  • Note: If PC arises during an investigatory stop, detention can become an arrest & officer can conduct a full search incident to that arrest.
23
Q

STOP AND FRISK: Automobile Stops

A
  • If car is properly stopped for traffic violation & officer reasonably believes driver/passenger may be armed & dangerous, officer may:
    (1) conduct frisk of suspected person, and
    (2) search car, if it is limited to areas where weapon may be placed
24
Q

Evanescent Evidence

A
  • Evanescent evidence: evidence that might disappear quickly if police took time to get warrant.
    -Ex. officer can scrape under suspect’s fingernails w/o warrant b/c if officer waited for warrant D may wash their hands.
  • But note: Officers need to get warrant b/f taking blood sample for DUI arrest (if practical to do so).
25
Q

Hot Pursuit

A
  • Police in hot pursuit of fleeing felon may make warrantless search & seizure & may even pursue suspect into private dwelling.
  • However, if fleeing person is suspected of misdemeanor, flight does not always justify warrantless entry into a home.
  • Officer must consider all circumstances to determine whether there is a law enforcement emergency that justifies warrantless entry.
  • Rule of thumb: If police are not w/in 15 mins behind fleeing felon, not a hot pursuit that falls under exception.
  • Note: If police are truly in hot pursuit of felon, they can enter anyone’s home w/out warrant, & any evidence they see in plain view will be admissible
26
Q

Emergency Aid/Community Caretaker Exception

A
  • A police officer may enter premises w/o a warrant if officer faces an emergency that threatens health/safety of an individual/the public.
27
Q

ADMINISTRATIVE INSPECTIONS AND SEARCHES

A
  • Inspectors must have warrant for searches of private residences & commercial buildings, but PC required to obtain a warrant is more lenient than for other searches: A showing of a general & neutral enforcement plan will be enough
28
Q

Exceptions Permitting Warrantless Searches

A

The following warrantless searches have been upheld:
(1) Administrative searches to seize spoiled/ contaminated food
(2) Administrative searches of a business w/in a highly regulated industry
(3) Inventory searches of arrestees/their cars pursuant to established department procedure
(4) Searches—including suspicionless strip searches—of prisoners b/f being admitted into general prison population, even of persons arrested for minor crimes
(5) Searches of airline passengers prior to boarding
(6) Searches of parolees & their homes—even w/o reasonable grounds for search, at least as long as there is a statute authorizing such searches
(7) Searches of gov employees’ desks & file cabinets where scope is reasonable & there is a work-related need/reasonable suspicion of work-related misconduct
(8) Drug tests of railroad employees involved in an accident
(9) Drug tests of persons seeking customs employment in positions connected to drug interdiction
(10) Drug tests of public school students who participate in extracurricular activities

29
Q

Public School Searches

A
  • Warrant/PC is not required for public school officials to search public school students/their possessions; only reasonable grounds for search are necessary.
  • A school search will be held to be reasonable only if:
    (1) It offers a moderate chance of finding evidence of wrongdoing
    (2) Measures used for search are reasonably related to search’s objectives; and
    (3) Search is not excessively intrusive in light of student’s age & sex & nature of infraction
30
Q

Searches in Foreign Countries

A
  • 4th am does not apply to searches & seizures by US officials in foreign countries & involving an alien, at least where alien does not have substantial connection to US.
  • Ex. 4th am was held not to bar use of evidence obtained in warrantless search of alien’s home in Mexico.
31
Q

Searches at the Border or Its Equivalent

A
  • Neither warrant/ PC nor reasonable suspicion is needed for search at U.S. border
  • Roving patrols inside U.S. border may stop car for questioning of occupants if officer reasonably suspects car contains undocumented aliens.
  • Border officials may stop car at fixed checkpoint inside border for questioning of occupants & may disassemble car, even w/o reasonable suspicion.
32
Q

Opening International Mail

A
  • Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that mail contains contraband.
33
Q

Immigration Enforcement Actions

A
  • Immigration Services Division may do “factory survey” of work force in factory to determine citizenship of each employee.
  • Even illegally obtained evidence (in violation of 4th am) may be used in civil deportation hearing.
34
Q

Detentions

A
  • Officials w/ “reasonable suspicion” that traveler is smuggling contraband in their stomach may detain traveler.
35
Q

WIRETAPPING AND EAVESDROPPING
.

A
  • Wiretapping (& other forms of electronic surveillance violating REOP) is a search under 4th am
  • Valid warrant authorizing wiretap may be issued if
    (1) there is showing of PC,
    (2) suspected persons involved in conversations to be overheard are named,
    (3) warrant describes w/ particularity conversations that can be overheard,
    (4) wiretap is limited to short period of time,
    (5) wiretap is terminated when desired info has been obtained, and
    (6) return is made to ct, showing what conversations have been intercepted
36
Q

Exceptions—The Unreliable Ear and Uninvited
Ear

A
  • A speaker assumes the risk that person to whom they are talking either consents to gov monitoring the conversation/is an informer wired for sound/taping conversation.
  • A speaker has no 4th am claim if they make no attempt to keep a conversation private.
37
Q

Pen Registers

A
  • Although pen registers (devices that record only phone numbers dialed from a phone) are not controlled by 4th am, by statute judicial approval is required b/f pen register may be used.

Crim Pro (19 decks)

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