Introduction and Fourth Amendment Flashcards
Fourth Amendment generally
Prohibition against unreasonable searches and seizures
Exclusionary rule
Fifth Amendment generally
Privilege against compulsory self-incrimination
Prohibition against double jeopardy
Sixth Amendment generally
Speedy trial
Public trial
Trial by jury
Confront witnesses
Compulsory process for obtaining witnesses
Right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed
Eighth Amendment generally
Prohibition against cruel and unusual punishment
Prohibition against excessive fines
Constitution and states
Fourth, fifth, sixth, and eighth amendments are binding on the states
Constitution provides the floor of protection - states are free to grant greater protection
Constitutional rights not binding on the states
The right to indictment by a grand jury for capital and infamous crimes has been held not to be binding on the states
Seizure generally
Fourth amendment provides that people should be free from unreasonable searches and seizures
Arrests are seizures so just needs to be reasonable
What is a seizure
Any exercise of control by a government agent over a person or thing
A seizure is when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter
When arrest occurs
An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation
Definition of probable cause
Trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law
Based on totality of the circumstances
Requirements for an arrest
An arrest must be based on probable cause
A warrant generally is not required before arresting a person in a public place, but is needed for arresting someone in their home generally (unless exception)
Arrest in home
Need a warrant, unless exception
May enter the suspect’s home only if there is reason to believe the suspect is within it
Station house detentions
Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will
Effect of invalid arrest
An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution
Arrest with no probable cause, but later on does have probable cause, no problem that it originally was not there
Terry stops and frisks generally
The police have authority to briefly detain a person even if they lack probable cause to arrest
- brief detention for the purpose of investigating suspicious conduct
Can detain a person for investigative purposes if there is reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts
- not merely a hunch
Can also frisk for weapons if reasonable suspicion that the detainee is armed and dangerous
Reasonable suspicion definition
More than just vague suspicion, but less than probable cause
Whether the police have reasonable suspicion depends on the totality of the circumstances
Reasonable suspicion and informants
When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability, including predictive information
But predictive information does not have to be there to find it
Totality of the circumstances test - the informant’s reliability and credibility or their basis of knowledge are relevant factors in making the determination
Duration and scope of terry stops
Not subject to a specific time limit - must act in a diligent and reasonable manner in confirming or dispelling their suspicions
Detention can turn into an arrest if during the detention, other probable cause for arrest arises
Asking for identity during terry stops
The police may ask the detained person to identify themselves and generally may arrest the detainee for failure to comply with such a request
Property seizures - terry
Brief property seizures are similarly valid if based on reasonable suspicion
Automobile stops generally
Generally, police officers may stop a car if they have at least reasonable suspicion to believe that a law has been violated
Traffic stops and police dogs
During routine traffic stops, a dog sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
Dog alert to the presence of drugs can form the basis for probable cause for a search
Police dogs and the home
Police, without probable cause, cannot use a drug sniffing dog outside the home of a suspected drug dealer
Mistake of law - terry stops
A police officer’s mistake of law (mistakenly believing that a vehicle must have two working brake lights) does not invalidate a seizure as long as the mistake was reasonable
Terry stop - other occupants
An automobile stop constitutes a seizure not only of the automobile’s driver, but also of any passengers as well
Passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop
Informational checkpoints generally
If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional
Ex: robbery or burglary happened the day before, cops make roadblock stopping in the same area the next day to ask if people see, etc
Special law enforcement needs and roadblocks
If special law enforcement needs are involved, the SC allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver violated some law
To be valid, the roadblock must
- stop cars on the basis of some neutral, articulable standard, and
- be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility
Ex: roadblock for DUI checkpoint
Can’t be used to detect evidence of ordinary criminal wrongdoing
Car stop and occupants out of car
After lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out
If the officer reasonably believes the detainees are armed, the officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out
Pretextual stops
If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop
Can pull someone over for a valid, traffic law violation even if ulterior motive is to search for other reasons
Preventing individual from entering home and warrant
If the police have probable cause to believe that a suspect has hidden drugs in their home, they may, for a reasonable time, prevent the suspect from going into the home unaccompanied so that they can prevent the suspect from destroying the drugs while they obtain a search warrant
Grand jury appearance - fourth amendment concerns
Seizure of a person by subpoena for a grand jury appearance is not within the fourth amendment’s protection
Seizure and deadly force
There is a fourth amendment seizure when a police officer uses deadly force to apprehend a suspect
An officer may not use deadly force unless it is reasonable to do so under the circumstances
- for example, when the suspect poses a danger to their own life or the lives of others
Fourth amendment right generally
A defendant will have a fourth amendment right when there is a seizure by the government concerning a place or thing in which the defendant had a reasonable expectation of privacy or the search involved a physical intrusion into a constitutionally protected area
Evidentiary search and seizure generally
Like arrests, evidentiary searches and seizures must be reasonable to be valid under the fourth amendment
Reasonableness requires a warrant except in 6 circumstances
Approached with following steps
- was there government action
- does the party have standing
- is there a warrant
- if not, was there an exception to the requirement
Governmental conduct
The Fourth Amendment generally protects only against governmental conduct
- police officers
- other government agents
- private individuals acting at the direction of the public police
Does not protect against searches by privately paid police unless they are deputized as officers of the public police
- like security guards, subdivision police, and campus police
Standing generally
Two ways an individual will get standing - when searches and seizures implicate their individual fourth amendment rights
- search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy, or
- physical intrusion by the government into a constitutionally protected area to obtain information
Totality of the circumstances
Need standing to object to a governmental search - their own reasonable expectation of privacy
Expectation of privacy - held out to the public generally
A person does not have a reasonable expectation of privacy in objects held out to the public
Generally, this includes information in the hands of third parties - such as bank account records
But cell-site location information
List of things held out to public (9)
Following implicates no right to privacy because it was held out to the public:
- sound of ones voice
- style of handwriting
- paint on outside of car
- account records held by a bank
- location of car on a public street or in a driveway
- anything that can be seen across the open fields
- anything that can be seen from flying over public airspace
- the odors emanating from luggage or car, and
- garbage set out on the curb for collection
Cell-site location information
A person does have a reasonable expectation of privacy in their cell-site location information which is stored in the hands of third parties
This is personal location information derived from cell phone usage data
Installing a GPS device
Although the location of a car on a public street or in a driveway is held out to the public and thus, there is no expectation of privacy, the installation of a GPS device on a suspect’s car constitutes a search within the Fourth Amendment
Sense-enhancing technology
The use of sense-enhancing technology that is not in general public use to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion violates the suspect’s legitimate expectation of privacy
Warrant generally
Generally, criminal law enforcement officers must have a warrant to conduct a search unless it falls within one of the six exceptions to the warrant requirement
Two core requirements for a facially valid search warrant:
- probable cause
- particularity
Warrant - probable cause
A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed
Warrant - affidavit
Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions
Invalid search warrant on the basis of an affidavit
A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:
- a false statement was included in the affidavit by the affiant
- the affiant intentionally or recklessly included the false statement, and
- the false statement was material to the finding of probable cause
This test for invalidating the affidavit is very restrictive - all three must be met
Automatic time of standing
A person will have a reasonable expectation of privacy anytime
- the person owned or had a right to possession of the place searched
- the place searched was in fact their home, whether or not they owned or had a right to possession of it, or
- the person was an overnight guest
Sometimes category - person owns the property seized. Will have standing only if they have a reasonable expectation of privacy in the item or area searched
Police reliance on warrant
Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution even if there is an ultimate finding that the warrant was not supported by probable cause
Good faith exception - applies only if the police obtained a warrant and it is invalid
Requirements of contents of the warrant
A warrant must describe with particularity the place to be searched and items to be seized
If it does not, the warrant is unconstitutional even if the underlying affidavit gives such detail
Anticipatory warrant
A warrant can predict when illegal items may be in a suspect’s home or office
The items do not need to be on the premises at the time the warrant is issued
Search of third-party premises
A warrant may be obtained to search premises belonging to non suspects as long as there is probable cause to believe that evidence will be found there
Magistrate - warrant
The magistrate who issues the warrant must be neutral and detached from the case
Executing a warrant - who, when, scope, what can be seized
Only the police may execute a warrant and it must be executed without unreasonable delay
Cannot be accompanied by any third parties unless the third parties are present to aid in identifying stolen property
The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant
Can seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant
Knock and announce
When executing a warrant, the police must knock, announce their purpose, and wait a reasonable time for admittance
- unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation
Violations of the knock and announce rule will not result in the suppression of evidence otherwise properly obtained - the exclusionary rule does not apply to knock and announce
Search of persons found on searched premises
A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but does not authorize police to search persons found on the premises who weren’t named in the warrant
Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed
Search incident to constitutional arrest
Exception to warrant requirement
Incident to a constitutional arrest (one based on probable cause and meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence
Must be contemporaneous in time and place with the arrest - but that does not necessarily mean simultaneous
If search is unconstitutional, any search incident to that arrest is also unconstitutional
Protective sweep
SITA
Police may make a protective sweep of the area if they believe accomplices may be present
SITA and geographic scope
The person and the areas within the person’s wingspan is what can be searched
SITA and automobiles
The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search
- the arrestee is unsecured and still may gain access to the interior of the vehicle, OR
- the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
Passenger compartment = no trunks
What was found from search differs than reason for search
So long as the search itself is valid, anything found during it is seizable
Technology searches
In assessing the validity of a search incident to an arrest involving things that did not exist when the fourth amendment was adopted, the court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests
Blood tests
When arrest for DUI, police can administer a warrantless breath test but not administer a warrantless blood test
Cell phone itself vs. its data
Make sure arrestees do not have weapons / contraband
Can examine the physical attributes of a person’s cell phone upon arrest but cannot examine the data on a cell phone without a warrant
Search - incarceration / impoundment
Can make an inventory search of the arrestee’s belongings pursuant to established department procedure
Can make inventory search of an impounded vehicle
- and any containers contained in car
Automobile exception
If police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole car and any container that might reasonably contain the item for which they had probable cause to search
Includes the trunk
If warrantless search is valid, can tow the car to the station to search later
Warrantless does not apply if the car is parked in the cartilage of a home
Car itself can be contraband - so can seize it from a public place
Passenger in car
The search may extend to packages belonging to a passenger - not limited to the driver’s belongings
Containers in car
Probable cause only to search a container in a vehicle (luggage recently placed in the trunk), can search only the container - not the other parts of the car
PC and after car is stopped
PC necessary to justify the warrantless search of a car can arise after the car is stopped
But PC must arise before anything or anybody is searched
Plain view
Warrantless seizure when
- legitimately on the premises
- discover evidence, fruits or instrumentalities of crime, or contraband,
- see such evidence in plain view, and
- it is immediately apparent (probable cause to believe) that the item is evidence, contraband, or a fruit of instrumentality of crime
Warrant - consent
A warrantless search is valid if the police have voluntary consent
Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent
Police saying they have a warrant negates consent
scope of search - consent
The scope of the search may be limited by the scope of consent
Generally extends to all areas to which a reasonable person under the circumstances would believe it extends
Authority to consent for others
Any person with an apparent equal right to use or occupy property may consent to a search
- reasonably apparent authority to consent
And any evidence found may be used against the other owners or occupants
Occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant
Co-occupant objects to search - consent for others
If a co-occupant objects to a search and is removed for a reason unrelated to the refusal (arrested), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent
Terry stop standard
A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity
Terry frisk standard
If the officer reasonably believes that the person may be armed and presently dangerous, officer may conduct a protective frisk
Generally limited to a putdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing
- plain feel
Evidence from terry frisk
During a pat down, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon or contraband
Watch out for “manipulated”
Terry stops and frisks - automobile
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may
- conduct a frisk of the suspected person, and
- search the vehicle, so long as it is limited to the areas in which weapons may be placed
Evanescent evidence exception
Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant - fleeting evidence
Exception to warrant requirement
Officers need to get a warrant before taking a blood sample for a dUI arrest if it is practical to do so
Hot pursuit
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling
- can enter premises without warrant
- any evidence seen in plain view will be admissible
For misdemeanors, don’t always justify warrantless entry
If police are not within 15 minutes behind the fleeing felon, it is not hot pursuit
Emergency aid / community caretaker exception to warrant
Exception to warrant requirement
A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public
Public school searches
A warrant or probable cause is not required for public school officials to search public school students or their possessions
- drug tests of public school students who participate in extracurricular activities are okay
Only reasonable grounds for the search are necessary
When public school search will be reasonable
School search will be held to be reasonable only if
- it offers a moderate chance of finding evidence of wrongdoing
- the measures adopted to carry out the search are reasonably related to the objectives of the search, and
- the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction
Search at US border
Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the US border, due to national sovereignty interests
Patrols inside the US may stop a vehicle for questioning of occupants if an officer reasonably suspects that the car contains undocumented aliens
Wiretapping and eavesdropping
Wiretapping and other forms of electronic surveillance violating a reasonable expectation of privacy constitutes a search
Warrant authorizing it if
- probable cause
- suspected persons involved in the conversations to be overheard are named,
- the warrant describes with particularity the conversations that can be overheard
- the wiretap is limited to a short period of time
- the wiretap is terminated when the desired information has been obtained, and
- return is made to the court, showing what conversations have been intercepted
Exceptions
The unreliable ear and uninvited ear exception
A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation
- thus, no expectation of privacy
A speaker has no fourth amendment claim if they make no attempt to keep the conversation private
