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
Automobile Exception - Limitation
Immobile vehicles. If a vehicle is incapable of locomotion, or is parked in an area not proximate to public roads: automobile exception is inapplicable – police must get a warrant or rely on some other exception – this is a very narrow limitation. Parked in a parking lot does not trigger this limitation.
Accordingly, the police must: obtain a warrant.
Warrantless Searches: The Special Needs Doctrine
Police are permitted to use checkpoints to conduct brief seizures and/or limited searches with no individualized suspicion or warrant in response to a public safety danger that cannot be addressed by complying with the normal individualized suspicion/warrant requirements.
Must be narrowly tailored.
The Primary Purpose of the Special Needs Doctrine is…
Protect public from an immediate danger
Examples include: sobriety checkpoints, search for recently escaped prison inmates, counter-terrorism checkpoints, and checkpoints to search for suspects of a recent violent crime.
The Special Needs Doctrine is inapplicable to for the purpose of
General Crime Control
Discovery of Evidence
Warrantless Searches: Consent Searches
Consent is an exception to both the warrant and probable cause requirements. If an individual waives her right to privacy by consenting to a search: the search is reasonable even if the police officer asks for consent on a hunch
Any evidence observed in plain view within the proper scope of a consent search: will be seized under plain view doctrine
Consent must be: knowing and voluntary (totality of the circumstances)
Defendant must expressly limit the scope of the search
Warrantless Searches:
Third-Party Consent:
Any person who has joint control or use of shared premises may consent to a valid search and any evidence seized in plain view may be used against the co-occupants
Only common areas but not private reserved areas where the defendant has complete control
A police search based on consent is reasonable so long as: the person granting consent has actual authority over the place (common area) a reasonable officer would believe the person had authority to grant consent
Warrantless Searches: Hot Pursuit Exception
A warrantless search for a suspect is lawful when: police are in actual hot pursuit of a suspect to apprehend
Police may enter and search a private dwelling: while in hot pursuit of a fleeing suspect even if the dwelling is not the suspect’s dwelling
Police may execute a warrantless arrest of the suspect in the premises and: also seize any contraband observed in plain view pursuant to the hot pursuit entry
Warrantless Searches: Exigent Circumstances Exception
Police may search without a warrant when the situation indicates waiting to obtain a warrant will result in:
imminent destruction of evidence
imminent escape of the suspect
imminent risk to the police or others in the area especially in the home
***Needs Probable Cause
Warrantless Searches: The Terry Search (Frisk)
A Terry Frisk is a cursory search (pat down) for weapons or some other instrumentality that creates an imminent danger to the officer or others in close proximity.
A Terry Stop is justified by Reasonable Suspicion “crime is afoot;” a Terry Frisk is justified only when the reasonable suspicion also indicates the suspect is armed and dangerous.
Protective not a search for evidence
Warrantless Searches: Administrative Searches (Agency Inspections)
Conducted for non criminal purposes
“Agency compliance inspection” whereby compliance with administrative regulations or health and safety codes is verified.
Justified based on reasonable suspicion and not probable cause
Exceptions to Administrative Warrants for Agency Inspections
Airport Screenings
Border Searches
