Fourth Amendment - Search Flashcards
A search is
A search is a government intrusion into a reasonable expectation of privacy (REP).
“Looking” for something is not always a search. A search is defined by where the police go or look.
Only when police “look” into a REP or go to an area within a REP will it qualify as a search for purposes of the Fourth Amendment.
Reasonable Expectation of Privacy (REP) requires:
The defendant manifests: subjective expectation of privacy by making an effort to shield the place, thing, or activity from the public
The expectation is objectionably reasonable because it is an expectation society is willing to recognize
There is no reasonable expectation of privacy when the objects to be seized are:
held out to the public (knowingly exposes to the public, then if the police sees it, its not a search)
Police use of animals or commonly available equipment to enhance their natural senses of sight, hearing, or smell does not transform their observations into a search so long as
what they see, hear, or smell is detected without intruding on a REP.
A defendant does not have a reasonable expectation of privacy in the following items because they have all been knowingly exposed to the public:
- Handwriting exemplars
- Voice exemplars
- Bank records
- Pen registers (telephone numbers recorded when dialed at telephone station
- Information on an email sent through an ISP (but the contents of the email are within a REP); (to, from and date)
- Conversations the suspect believes are private, the police record with consent of the other party to the conversation;
- Open fields: Unoccupied areas beyond the curtilage of the home even if the police is trespassing
- Naked eye observation of private property by air so long as police comply by flight limitations
- Aerial photography of large fenced in areas around an industrial complex even using high powered scoped
- Discarded property, such as commingled garbage and abandoned rental premises.
When the government uses a device that is not in general public use, enabling them to see “through the walls” of a home…
This is a search because it intrudes upon a REP.
Absent independent justification, search warrant gives the police authority to only search…
named places or persons
The scope of the search is limited to: premises described in the warrant
Contraband not listed in the warrant may be lawfully seized under…
Plain view doctrine during warrant execution so long as it comes into plain view during the scope of the warrant
A location owned by non-suspects may be searched upon
obtaining a warrant
A search warrant for a premises carries with it the right to
detain persons in the home during the search but not the right to search those persons unless they are listed in the warrant
A warrantless search is unreasonable unless it falls within one of the following established exceptions:
- Searches Incident to a Lawful Arrest (SITLA)
- Automobile Exception
- The Special Needs Doctrine
- Consent
- Hot Pursuit
- Exigent Circumstances
- The Terry Search (Frisk)
- Administrative Searches (Agency Inspections)
Warrantless Searches: Scope of a Search Incident to a Lawful Arrest (SITLA)
To protect the arresting police officers and to prevent the destruction of evidence, the defendant’s person, as well as the area within his immediate control (usually referred to as the wingspan) may be searched incident to a lawful arrest.
Warrantless Searches: Timing of a SITLA
Must be contemporaneous or may even precede the arrest
If a suspect is arrested in his home…
The scope of SITLA is limited to the area w/n his lunging distance and doesn’t include authority to search the entire house
- However, if police have a reasonable basis to believe they may be at risk of ambush while in the home, they may conduct a cursory protective sweep of other parts of the home to rule out the risk that a person may be laying in wait for them
- This “Terry sweep” of the home is limited to ruling out the risk of ambush, therefore the scope is limited to places a person may be hiding
Warrantless Searches: Automobile Exception
Once the police have probable cause to search the moving or temporarily stopped vehicle, they may seize the vehicle and search it later, even if there is sufficient time to obtain a warrant between the seizure of the vehicle and the subsequent search
The police may inspect a container within an automobile if they have probable cause to believe the container has contraband or evidence even where they do not have probable cause to search the entire car
