Fourth Amendment Search and Seizure Flashcards
What are the global issues to a 4A Search and Seizure analysis?
1) Whether a search/seizure is governed by the 4A;
2) Whether the person has standing to challenge the government’s conduct;
3) Whether a search/seizure conducted WITH a warrant satisfies the 4A requirements;
4) Whether a search/seizure conducted WITHOUT a warrant satisfies the 4A requirements; AND
5) Whether evidence is admissible in court EVEN IF the evidence is obtained through a violation of the 4A?
When is a search or seizure governed by the 4A?
A search/seizure is governed by the 4A when…
1) It’s conducted by a gov’t agent; AND
- Publicly paid police officers (on- or off-duty)
- Private citizens acting at direction of police
- Private security guards with power to arrest
- Public school administration
2) The search/seizure was in an area protected by the 4A;
- Persons
- Houses (including curtilage)
- Papers
- Effects
- *Does NOT protect objects knowingly exposed to 3rd parties, like…
- Paint scrappings on the outside of a car
- Account records at a bank
- Anything that can be seen from airspace
- Garbage left on the curb
- Voice
- Odors (emanating from car or luggage, not house)
- Handwriting styles
- Anything seen IN or ACROSS the open field
3) The gov’t agent EITHER:
(i) PHYSICALLY INTRUDED on a protected area/item to obtain information; OR
(ii) VIOLATED an individual’s reasonable expectation of privacy in a protected area/item
**To meet this standard, an individual must show
(i) an ACTUAL or SUBJECTIVE expectation or privacy;
AND(ii) the privacy expectation is “one that society recognizes as reasonable”
** A police search is presumptively unreasonable WHEN it they use a device that is NOT in the public use to explore the details of a home that officers could NOT have known w/o physical intrusion
When does a person have standing to challenge a search/seizure under the 4A?
NOTE: NY Distinction
To have standing, an individual’s PERSONAL privacy rights must be invaded; NOT just those of a 3rd party
Standing EXISTS when…
1) they OWN the premises 2) they RESIDE on the premises 3) they are overnight GUESTS on the premises (in area is one that guests can be expected to access)
Standing DOES NOT EXIST when…
1) they are using someone else's residence SOLELY for business purposes (e.g. a drug house) 2) they own the property seized, BUT no reasonable expectation of privacy in the AREA from where the property was seized (e.g. man who hides his drugs in girl's purse) 3) passengers in cars and there is a search of the car
** NY DISTINCTION: there IS STANDING if they are passengers in a car and weapons found in the car are being attributed to them
When is the 4A warrant requirement satisfied?
NOTE: NY Distinction
To satsify the 4A…
1) the warrant must be issued by a neutral and detached magistrate
* * Neutral and detached = judicial officer’s conduct is NOT biased in favor of the prosecution
2) the warrant must be supported by probable cause and particularity
* * Probable causerequires proof of a “fair probablility” that contraband OR evidence of crime will be found in the area searched
* * Hearsay IS admissible for this purpose
* * Police may rely on informant’s tip (EVEN if it’s anonymous); PROVIDED police can get enough corroborating information for a judge to make a “common sense practical” determination that probable cause exists
NY DISTINCTION: the Aguilar-Spinelli test (stricter) is used in NY to evaluate PC based on tips; gov’t MUST establish:
(i) the informant’s veracicty/reliability; AND
(ii) the informant’s basis of knowledge
(NOTE: if basis is unknown, the police can establish through corroborating evidence)
Particularity requires”no fishing expeditions”; the warrant MUST specifiy:
- the PLACE to be searched; AND - the ITEMS to be seized
3) IF the warrant is DEFECTIVE, the police officers relied on defective warrant in good faith
* * An officer’s good faith canovercome constitutional deficits in PC and particularity, UNLESS…
- Affidavit supporting warrant is EGREGIOUSLY lacking
- Warrant is so FACIALLY DEFICIENT in particularity that officers couldn’t reasonably rely
- The affidavit relied upon by magistrate contains KNOWING or RECKLESS falsehoods that are necessary for a probable cause finding
- The magistrate who issued the warrant is BIASED in favor of the prosecution
***NY DISTINCTION: the “good faith” doctrine DOES NOT exist in NY
4) the warrant was properly executed by the police **Compliance w/ the warrant’s terms and limitations: officers are allowed to search ONLY those areas/items specified in the warrant
* *Knock and Announce rule: reqs police to “knock and announce” their presence AND their purpose before entering, UNLESSan officer believes that doing so would be…
- futile;
- dangerous; OR
- would inhibit the investigation
What are the exceptions to the 4A warrant requirement?
ESCAPIST
1) Exigent circumstance
2) Search incident to arrest
3) Consent
4) Automobile
5) Plain view
6) Inventory
7) Special needs
8) Terry “stop and frisk”
What is the”exigent circumstances”exception to the 4A warrant requirement?
3 types of situations that DON’T require warrants…
1) Evanescent evidence: evidence that would DISSIPATE or DISAPPEAR in the time it would take to get a warrant
2) Hot pursuit of fleeing felon: allows police to enter the home of a suspectOR a 3rd 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
3) “Emergency aid” exception: Police may enter a residence without a warrant when there is an OBJECTIVELY reasonable basis for believing that a person inside is in need of EMERGENCY AID to address or prevent injury
What are requirements for the”search incident to arrest”exception to the 4A warrant requirement?
NOTE: NY Distinction
To be valid, requires…
1) A valid/lawful arrest (“custodial arrest”)
2) Justifications of officer safety; AND the need to preserve evidence
3) The search must be contemporaneous in time AND place with the arrest
4) The search must be within the “wingspan” (i.e. body, clothing, and containers within the arrestee’s immediate control) WITHOUT REGARD TO the offense for which the arrest was made
** NY DISTINCTION: to search containers within the wingspan, an officer MUST suspect that the arrestee is ARMED
5) To search automobile incident to an arrest, officer MUST Search within a permissible scope, including the interior cabin of the car (and closed containers therein), BUT not the trunk
** Secured arrestee: once an officer has secured an arrestee (i.e. handcuffed and put in back of squad car), the officer can search the arrestee’s vehicle ONLY if she has reason to believe that the vehicle MAY CONTAIN evidence RELATING TO the crime for which the arrest was made
** NY DISTINCTION: once the occupant is out of the car, police CANNOT search containers inside the vehicle to look for weapons or evidence of crime
What are the requirements for the”consent”exception to the 4A warrant requirement?
To be valid…
1) the consent must be VOLUNTARY and INTELLIGENT ** NOTE: police officers are NOT required to tell someone that she has the right to refuse consent
* * Apparent authority: if a police officer obtains consent to search from someone who lacks actual authority, the consent is STILL VALID provided the officer reasonably believed that the consenting person had “actual authority”
2) the search must extend ONLY TO those areas that a reasonable officer would believe he had permission
(e. g. they have a key to an apt and says that it’s “our” apt)
** NOTE re: shared premises: when adults share a residence, ANY resident can consent to search of the COMMON AREAS BUT, if the co-tenants DISAGREE re: consent, the objecting party prevails (for shared areas)
What are the requirements for the”automobile”exception to the 4A warrant requirement?
To be valid…
1) the police officer must have probable cause to believe that CONTRABAND or EVIDENCE of crime will be found in the vehicle;
2) the search scope = the entire vehicle by opening ANY package, luggage, or other container that may REASONABLY CONTAIN the items for which the probable cause exists
Justifications: vehicles’ readily mobility and individuals’ lesser expectations of privacy in vehicles
NOTE: a routine traffic stop can MORPH into a full auto search SO LONG AS the officer acquires probable cause BEFORE the search is initiated
What are requirements for the”plain view”exception to the 4A warrant requirement?
To be valid… 1) the officer must have lawful access to the PLACE from which the item can be plainly seen; 2) the officer must have lawful access to the ITEM itself; AND 3) the criminality of the item must be IMMEDIATELY apparent
What are requirements for the”inventory”exception to the 4A warrant requirement?
For an inventory search to be constitutional…
1) the regulations governing them must be REASONABLE in scope;
2) the search ITSELF must comply with those regulations; AND
3) the search must be conducted in GOOD FAITH (i.e. be motivated ONLY BY the need to safeguard the owner’s possessions and/or ensure officer safety)
NOTE: inventory searchs apply in 2 contexts: (i) when an ARRESTEE is booked into jail; AND (ii) when a VEHICLE is impounded
What are the “special needs” exceptions to the 4th Am warrant requirement?
“Special needs” of law enforcement, government employers and school officials BEYOND a general interest in law enforcement
1) Random drug testing: SCOTUS has approved warrantless, random drug tests in a variety of contexts, including:
(i) railroad employees following an accident;
(ii) customs agents responsible for drug enfocement;
AND (iii) public school children who participate in ANY extracurricular activity
NOTE: suspicionless drug tests are NOT permitted where their primary purpose is to gather CRIMINAL EVIDENCE for general use by law enforcement
2) Parolees: warrantless, SUSPICIONLESS searches of parolees and his home are permissible as a condition of parole
3) School searches: warrantless searches of the person and the “effects” (purses, backpacks, etc) of public schoolchildren are permissible to investigate violations of school rules (e.g. no smoking on school grounds), PROVIDED each search is based on reasonable suspicion at its inception and is NOT excessively intrusive (i.e. not a strip search)
4) Border searches: neither citizens nor non-citizens have ANY 4A rights AT THE BORDER with respect to ROUTINE searches of persons and effects
What is a Terry stop?
NOTE: NY Distinction
It is a brief WARRANTLESS detention (“seizure”) based on REASONABLE SUSPECION (specific and articulable facts) thatCRIMINAL ACTIVITY is present
Terry stops can take place ANYWHERE (e.g., on the street, in a car, at the airport, etc)
Reasonable suspecion is LESS demanding than probable cause
NOTE: Reasonable suspicion standard can be met via informant tip; PROVIDED the tip contains sufficient predictive info, which is corrorborated by the police, to establish the informant’s reliability
When does seizure occur?
Seizure occurs when a reasonable person would NOT feel free to leave OR to decline an officer’s request to answer questions (based on the totality of the circumstances) Factors to consider: (i) whether an officer brandishes a weapon; (ii) the officer’s tone/demeanor; OR (iii) whether an individual was told she had the right to refuse consent
Police pursuit: when being pursued by the police, an individual is seized ONLY IF he submits to the officer’s authority by stopping OR if the officer physically restrains him
NY DISTINCTION: police pursuit is seizure in and of itself
Traffic stops: BOTH driver AND the passengers are seized (either has standing to challenge legality) Officer can order both driver and passenger out of the car
Dog sniffs at traffic stops are permissible PROVIDED the “sniff” does not prolong the stop unreasonably
What is a Terry frisk?
NOTE: NY Distinction
It is a WARRANTLESS pat down of the body and outer clothing for weapons (which can lead to a seizure) based on a REASONABLE SUSPECION (specific and articulable facts) that the suspect is ARMED and DANGEROUS(safety-based rationale)
Reasonable suspecion is LESS demanding than probable cause
NOTE: Reasonable suspicion standard can be met via informant tip; PROVIDED the tip contains sufficient predictive info, which is corrorborated by the police, to establish the informant’s reliability
What can be seized?
(i) Anything reasonably believed to be a weapon (ii) Contraband; PROVIDED it can be recognized w/o manipulation of the object (e.g. licking to seek if coke)
NY DISTINCTION: an officer can seize an item ONLY IF it reasonably appears to be a weapon (i.e. CAN’T seize contraband)
(iii) During a traffic stops: an officer can search the passenger cabin of the suspect's vehicle; PROVIDED the search is limited to areas in which a weapon may be placed or hidden (iv) "Protective sweeps" during home arrests: officer may "sweep" the residence looking for criminal confederates of the arrestee whose presence may threaten officer safety. Officers may "sweep" the area IMMEDIATELY adjorning the place of arrest based on the risk that the house harbors a person who poses a danger. To justify a more remote "sweep", arresting officer must have ADDITIONAL facts sufficient to allow a "reasonably prudent" officer to conclude that an individual who may threaten officer safety is present in the area swept
What is the exclsionary rule for evidence obtained from an unconstitutional search/seizure under the 4A (as well as its limitations)?
General rule = Direct OR derivative evidence, whether physical or testimonial, that is obtained in violation of federal statute or constitution is INADMISSABLE in court against the individual whose rights were violated
LIMITATIONS to the exclusionary rule
1) Cross examination: excluded from the prosecutor’s case in chief ONLY; it MAY be introduced to impeach ∆’s testimony on cross-examination
2) “Knock and announce” violations: do NOT require the supression of evidence that is subsequently discovered
3) Police error: to trigger exclusionary rule, police conduct must be
(i) deliberate; (ii) reckless; OR (iii) grossly negligent
4) Officer’s reasonable mistake: exclusionary rule does NOT apply to evidence erroneously obtained when executing a search warrant (PROVIDED the mistake was reasonable)
