Fourth Amendment Search and Seizure

Question 1

4 Global Issues

Answer 1

1) Whether a search or seizure is governed by the Fourth Amendment?
2) With a valid warrant?
3) If no warrant, does it satisfy the Fourth Amendment?
4) To the extent a search and seizure violates the Fourth Amendment is nonetheless admissible in court.

Question 2

Does the 4th Amendment Apply?

Answer 2

1) Was the search or seizure executed by a government agent?
2) Was the search or seizure of an area or item protected by the Fourth Amendment?
3) Did the government agent either (a) physically intrude on a protected area or item to obtain information (b) violate an individuals REOP in a protected area or item?
4) Did the individual have standing to challenge the government agent’s conduct.

Need yes to all four

Question 3

Government Agent for 4th Amendment Purposes

Answer 3

Normally publicly paid police or off duty
- Private citizens ONLY IF acting at the direction of the police
- Private security guards only if they are deputized with the power to arrest
- Campus security deputized
- Public school administrators (principals and vice principals)
If conducted by someone in this category, move to the second question.

Question 4

Areas Protected Under 4th Amendment

Answer 4

A) persons (body),
B) houses (incl. hotel rooms and curtilage)
C) papers (letters, personal correspondence),
D) effects (personal belongings such as purses, backpacks and cars)
Unprotected items – routine exposure to third parties renders them sufficiently public in nature that they merit no Fourth Amendment protection, even if they are searched or seized by government agents.
Curtilage = an area adjacent to the home to which the activity of the home life extends.

Question 5

PUBLIC OBSERVATION GENERALLY OBLITERATES FOURTH AMENDMENENT PROTECTION

Answer 5

1) Physical Characteristics (handwriting, sound of voice)
2) Odors (emanating from a car or luggage)
3) Garbage (on the curb for collection)
4) Open fields (anything that can be seen in or across and open field)
5) Financial records held by a bank
6) Air space (public air space)
7) Pen registers (telephone numbers people have dialed)

Question 6

Two ways in which searches and seizures by government agents can implicate an individual’s 4th amendment rights.

Answer 6

A. Trespass-Based Test: Agent physically intruded on a constitutionally protected area in order to obtain information.

B. Privacy-Based Test: Actual or subjective reasonable expectation of privacy (main test)
a. Has to show 2 things
i. Actual or subjective expectation of privacy in the area searched or the items seized.
ii. The expectation is one that society recognizes as reasonable.

Question 7

Questions for a proper warrant and DE statutory requirements

Answer 7

1) Did the warrant application satisfy DE statutory requirements?
2) Was it issued by a neutral and detached magistrate?
3) Was it supported by probable cause and particularity?
4) Was it properly executed by the police?

DE Statutory Warrant Requirements:
a) application must be in writing.
b) has to be signed by the complainant.
c) verified by oath or affirmation

In DE – no search of a dwelling between 10pm – 6 am unless necessary to prevent escape of individual or removal of things being searched for.
– Magistrate must deem it necessary.

Question 8

Neutral and Detached Judicial Officer

Answer 8

Judicial officer ceases to be sufficiently “neutral and detached” for 4th Amendment purposes when their conduct demonstrates bias in favor of the prosecution.
- Ex. Flat amount for every warrant issued, financially compensated.

Question 9

Probable Cause

Answer 9

requires proof of a fair probability that contraband or evidence of a crime will be found in the area searched.
- Can use hearsay to furnish probable cause
- Reliance on informants: police may rely on information obtained through an informant’s tip even if the information is anonymous. “A common sense practical determination that probable cause exists based on a totality of the circumstances”
o Fluid and flexible one, far less rigorous than total accuracy.
o Whether a search warrant satisfies probable cause in DE are determined by the four corners of the affidavit.
 No oral supplementation in DE

Question 10

Warrant Particularity Requirement

Answer 10

Warrants have to specify the place to be searched and the items to be seized.
o No fishing expeditions are allowed, have to have PC to search areas.

Question 11

Good Faith Exception

Answer 11

Under federal law, a warrant that is invalid due to the absence of probable cause or particularity can still be saved if the officer relied on it in “good faith”
- DE (like several other states) rejects the good faith exception.
o Apply only on MBE
o On essays, have to find warrant was valid to move onto the next inquiry.

Question 12

Was the search properly executed by police?

Answer 12

• Warrant execution needs to be in compliance with the warrant terms and limits
  o Read the warrant language at least twice, where can they search, where can they not seize, what can they seize.
   If officers are to search living room or bedrooms for iPad, cannot look in container too small to hide an iPad. AND cannot look in breadbox in the KITCHEN.
  o Police may seize any contraband or instrumentalities in plain view.
• Officers can detain occupants found within or immediately outside the area to be searched.
  o Cannot drive somewhere else find the occupants and drag them back to the house.
• Knock and announce rule: police must announce both their presence and their purpose before they forcibly enter the place to be searched

Question 13

Exceptions to Knock and Announce Rule

Answer 13

1. When it is futile
2. dangerous
3. or it would Inhibit the investigation.

Question 14

Exceptions to Warrant Requirement

Answer 14

ESCAPIST:
1) Exigent circumstances
2) Search incident to arrest
3) Consent
4) Automobiles
5) Plain View
6) Inventory
7) Special Needs
8) Terry Stop and frisk

Question 15

Exigent Circumstances

Answer 15

Evanescent Evidence: Evidence that would dissipate or disappear in the time it would take to get a warrant.
- Ex. Scrape under fingernails, not enough for a blood alcohol test.
Hot pursuit: of a fleeing felon. Allows police to enter the home of a suspect or a third party to search for a fleeing felon.
- During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.
Emergency Aid/Community Caretaker Exception: Police may enter a residence without a warrant if there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury.
- The injury NEED NOT be life threatening.

Question 16

Search Incident to Arrest

Answer 16

1- Search must be lawful.
2- Search must be contemporaneous in time and place with arrest.
a. Does not mean simultaneous when it comes to cars.
3- Geographic scope is the wingspan.
Incident to a constitutional arrest, the police may search the person and areas into which they might reach to obtain weapons or destroy evidence.

Contemporary Applications from the Supreme Court:
1- Cell phones, can examine cells physical aspects to make sure it cannot be used as a weapon
a. Cannot get into data or contents without a warrant
2- DNA samples – police can swab cheek of arrestee for a serious offense
3- Drunk driving – sobriety tests, permits warrantless breath tests but not blood tests
4- Cell-site Location Data – police need a warrant to acquire data held by third parties detailing an individual’s movements over an extended period of time as recorded by time stamped antennas.
- Ex. Drunk David and the crack found in a container incident to arrest is admissible.
THIS IS A BRIGHTLINE SEARCH RULE
- Can criminally prosecute for refusing breathalyzer.
- Can permissibly search: the passenger cabin, including closed containers but not the trunk.
- Officer can search arrestee’s vehicle only if reason to believe vehicle may contain evidence relating to crime for which the arrest was made.
o Can search bags and boxes if arrestee is unsecured
o Cannot search inside of car if they are in the squad car.

Question 17

Consent

Answer 17

voluntary consent if valid: officers do not need to tell someone that they have the right to refuse
- Scope: all areas for which a reasonable officer would believe that permission to search was granted
o Apparent authority – police obtain consent from someone who lacks actual authority to grant it, the consent is still valid under the 4th amendment provided to officer reasonably believed that the consenting party had actual authority.
 Ex. Girlfriend with a key calls apartment “ours” but doesn’t actually live there even though she has things there.
o Shared premises: adult share resident any resident can consent to search common areas within it.
 Co-tenants who are present on premises disagree regarding consent to search the objecting party prevails, however, if co-tenant who objects is lawfully removed, police can rely on remaining tenant’s consent.
* Usually happens when there is a valid arrest warrant.

Question 18

Automobile Exception

Answer 18

• Justification: vehicles are ready mobility and individuals have lesser expectation of privacy in vehicles.
• 6 out of 8 exceptions apply to automobiles (search incident, consent, auto exception, plain view, inventory search, and a frisk)
• In order to invoke: Police must have probable cause to believe that fruits, instrumentalities or evidence of a crime they may search the whole vehicle and any container that may reasonably contain items for which there was probable cause to search.
• Does NOT apply when officers enter a home or its curtilage to search the vehicles.
• It is not uncommon that a routine traffic stop can result in a search of all or part of the vehicle.
  o For it to be lawful an officer does not need probable cause to search the vehicle
   At the time the car is pulled over
   Provided that the officer acquires it before initiating the search
  o Ex. A speeder is in a car linked to drug activity after running info. Checks trunk and there is a ton of cocaine.

Question 19

Plain View Exception

Answer 19

Police may make a warrantless seizure of an item in plain view if the following requirements are met:
1- The police have lawful access to the place from which the item can be plainly seen
2- The police have lawful access to the item itself
3- The criminality of the item is immediately apparent.

Question 20

Inventory Searches

Answer 20

Normally arises in 2 contexts:
1. Arrestees when they are booked into jail
2. Vehicles when they are impounded.
Have to have:
1. Regulations governing search are reasonable in scope
2. Search itself complied with those regulation
3. Search is conducted in good faith
a. Officer’s subjective belief is relevant.

Question 21

Special Needs

Answer 21

• Court approved drug testing
  o Railroad employees
  o Custom agents responsible for drug interdiction
  o Public schoolchildren who participate in any extracurricular activities
  o Parolees, as a permission of parole.
• School searches
• Government employees
• Border Searches
• Non-Law enforcement primary purpose test

Question 22

To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court?

Answer 22

Fruit of the Poisonous Tree:
- 3 major doctrines for “admitting the taint”
o Independent source
o Inevitable discovery
 Ex. Body of 11 year old girl would have been found through grid search eventually if not for the illegal confession.
o Attenuation: where the passage of time, intervening events, and the non-flagrant nature of the official misconduct “purge the taint” of the original illegality.