Kaplan Pgs 371-396 Fourth Amendment

Question 1

When a private party acts on his own and acquires evidence and then the government wants to introduce that evidence into a criminal prosecution, is that OK?

Answer 1

Yes, because no state actor was initially involved in getting the evidence

Question 2

If a police officer demands that an airline employee inspect a passenger’s bag before a flight, is the fourth amendment triggered?

Answer 2

Yes, because that made the flight attendant’s actions public action

Question 3

Is an arrest warrant required before someone is arrested in a public place?

Answer 3

No.

Question 4

If an arrest is not an emergency and you are doing it in a person’s home, what is required?

Answer 4

A warrant

Question 5

What is the two-step approach to determine if someone is in custody?

Answer 5

– whether a reasonable person would have felt that he was at liberty to terminate the interrogation. This is based on these factors: location of the questioning, duration, statements made during the interview, presence of physical restraints, release of the interviewee at the end of the questioning
- if the environment presents the same coercive pressures as a station house questioning would in Miranda

Question 6

In order to determine if someone is in custody, whose mindset is considered?

Answer 6

Only a reasonable person in the suspect’s position. It doesn’t matter what the actual suspect thought or what the interrogating officers thought

Question 7

Who can police officers strip search?

Answer 7

People who have been arrested for a crime

Question 8

If you have been arrested, can police collect DNA from you?

Answer 8

Yes

Question 9

What is needed to arrest someone?

Answer 9

Probable cause

Question 10

From where can police get information in order to develop probable cause to arrest someone?

Answer 10

• their own observations (like witnessing a crime or observing behaviour prior to a stop)
  – third parties (indirectly through an informant)

Question 11

If police develop probable cause through information that came from an informant, what is required?

Answer 11

The informant’s tip had to have specific details, and those details must be reliable and confirmed before the moment of seizure

Question 12

Police must have an arrest warrant before they can arrest someone in their own home, unless what?

Answer 12

The person consents or there are exigent circumstances

Question 13

How do the requirements for an arrest warrant compare to those for a search warrant?

Answer 13

They are virtually the same

Question 14

What would be considered an exigent circumstance that would allow a warrantless arrest in a person’s home?

Answer 14

• an arrest attempt was being made outside of the home but was thwarted because the suspect retreated into the house
  – insufficient time to get a warrant and the delay would let the suspect evade arrest or destroy evidence
  – the police were in hot pursuit and had probable cause to effect a valid arrest of the suspect

Question 15

If police officers see the sale of drugs happen in front of a residence, and when the suspect sees the police officers he runs into the house with the drugs, can police follow the suspect into the house to arrest him without a warrant?

Answer 15

Yes, because they have probable cause and there is insufficient time to get a warrant before the suspect will destroy the evidence

Question 16

If police violate the knock and announce rule, does that trigger exclusion of the evidence?

Answer 16

No

Question 17

When must police officers knock and announce their identity before entering a house?

Answer 17

Anytime unless exigent circumstances exist (which includes a reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit effective investigation)

Question 18

When can an arresting officer break windows or other property?

Answer 18

If reasonably required to execute the warrant

Question 19

When can a private citizen make an arrest?

Answer 19

For felonies committed in his presence

Question 20

When can a police officer arrest a person without a warrant?

Answer 20

If he has reasonable grounds to believe that the person committed a felony

Question 21

If a police officer did not personally observe a misdemeanour occur in his presence, can he arrest the person without an arrest warrant?

Answer 21

No

Question 22

When can deadly force be used to prevent the escape of a felony suspect?

Answer 22

If the suspect poses a threat of serious physical harm to the officer or to others

Question 23

When is probable cause evaluated?

Answer 23

Based on what was known at the moment of the intrusion

Question 24

What is an anticipatory or conditional warrant?

Answer 24

A warrant that is conditioned on an event happening such as the delivery of a package

Question 25

What are the two showings that must happen in order for a court to issue an anticipatory warrant?

Answer 25

• if the triggering condition happens, there must be a fair probability that evidence of the crime will be found at a particular location, and
  – there must be probable cause that the triggering condition will occur

Question 26

Can an anonymous tip alone give adequate information for probable cause?

Answer 26

No, but an anonymous tip coupled with police corroboration of some of the information can

Question 27

What is a frisk?

Answer 27

A limited pat down of a suspect’s outer garments looking for weapons

Question 28

If during a frisk for weapons, an officer feels an item that reasonably feels like a weapon or contraband, can he seize that item?

Answer 28

Yes

Question 29

Is flight enough for probable cause or reasonable suspicion?

Answer 29

It is not enough for probable cause but it is enough for reasonable suspicion

Question 30

What is required in order for information to be considered a reliable tip in order to give a reasonable suspicion?

Answer 30

The objective evidence requirement says that the information has to be confirmed as reliable before actually doing the stop. The tip has to contain some predictive information.

Ie: if a tip just says someone is standing by a payphone with a plaid jacket, that does not give reasonable suspicion because it has no predictive information

Question 31

Does a passenger in an automobile have standing to challenge the validity of a search of the vehicle?

Answer 31

No, because he does not have any ownership or possessory interest in the vehicle

Question 32

Would a passenger in a car have standing to challenge a police stop of the vehicle?

Answer 32

Yes, because all of the occupants of a car are seized during a traffic stop. This means that the passenger would have standing to challenge the search and seizure of items inside the vehicle as fruit.

Question 33

Do overnight guests in another person’s home have standing?

Answer 33

Yes

Question 34

Do short term guests, non-overnight social guests, and commercial guests have a reasonable expectation of privacy in a host home such that they would have standing?

Answer 34

No

Question 35

What are things that a defendant does not have a reasonable expectation of privacy in even if they are held out to the public?

Answer 35

– handwriting exemplars
– voice exemplars
– bank records
– pen registers that record things like telephone numbers that have been dialed
– private conversations that have been eavesdropped on

Question 36

If police use a drug dog to sniff for drugs on a person’s front porch, is that considered to be a search?

Answer 36

Yes

Question 37

Do canine searches constitute fourth amendment violations?

Answer 37

Only if they physically intrude on a constitutionally protected area such as the home, curtilage, or person

Question 38

Why are administrative searches OK to do without a warrant?

Answer 38

Because they are protecting airline passengers from weapons and explosives. If a passenger doesn’t want to be searched, he can decline to board the plane

Question 39

Are drug sniffing dogs allowed to be used at a traffic stop?

Answer 39

Yes, as long as the prolongation of the stop is brief

Question 40

A search done by government authority without a warrant is presumptively what?

Answer 40

Invalid unless a specially carved out exception applies

Question 41

A reasonable search under the fourth amendment must be done according to what?

Answer 41

Either a warrant or an exception

Question 42

If probable cause is illegally obtained, can that still support a search warrant or a warrantless search?

Answer 42

No

Question 43

How must an arrest warrant describe a person to be arrested?

Answer 43

Either by name or by reasonably specific descriptions so the officers can locate the suspect with reasonable effort

Question 44

Is a justice of the peace that is also the state attorney general considered to be neutral and detached such that he can issue a warrant?

Answer 44

No

Question 45

If a magistrate takes a monetary reward for issuing the warrant, is he considered to be neutral and detached?

Answer 45

Of course not

Question 46

If you are applying for a warrant, how does that work?

Answer 46

You either give oral testimony or an affidavit that sets forth the facts or circumstances that the magistrate will rely on. The magistrate then makes an independent judgement of the reasonableness of the request to determine if there was probable cause

Question 47

Can you submit the information for a magistrate to determine if a warrant should be granted electronically through fax or email?

Answer 47

Yes

Question 48

If police are lawfully in a home to arrest someone and they see contraband that isn’t named in the warrant, can they seize that contraband?

Answer 48

Yes, under the plain view doctrine

Question 49

What is the two prong test for probable cause with relation to getting a warrant?

Answer 49

– the testimony or affidavit given to the magistrate must have facts or circumstances that are still relevant
– it must be sufficient for a reasonable person to conclude that it is more probable than not that the evidence or the person will be found

Question 50

If a warrant is based on an informant tip, how do you determine if probable cause has been established?

Answer 50

Under the totality of the circumstances:
– credible information
– reliable informant
– police corroboration
– declaration against interest

Question 51

Must an informant reveal his identity?

Answer 51

No, and the government is not required to disclose this if it will jeopardize the informant’s safety or the integrity of the investigation

Question 52

What is a situation where it would be improper to issue a warrant even though there was probable cause?

Answer 52

If the intrusion would be unreasonable. I.e.: it would be improper to require that a bullet be removed from a robbery suspect when it is deeply imbedded in his body, the removal would damage his body, and would require general anaesthesia

Question 53

How can a defendant challenge a warrant?

Answer 53

He can challenge the affidavit the warrant was based on if he can prove by a preponderance of the evidence that:
– the affidavit contained false statements
– the statements were made intentionally, knowingly, or in reckless disregard of the truth, and
– the magistrate’s finding of probable cause could not have been made without those false statements

Question 54

What are the limitations that are placed on a search warrant?

Answer 54

• only the police can execute warrants
  – the execution must be prompt while probable cause still exists
  – unless there are exigent circumstances the officer must knock and announce before attempting a forcible entry

Question 55

If someone is not named in a warrant, can they be searched just because they were present at the search location?

Answer 55

No

Question 56

Can private citizens help the police execute warrants?

Answer 56

No. That is a violation of the fourth amendment. Police cannot bring members of the media or third parties into a home during the execution of a warrant unless those people are there to aid the execution of the warrant. The police could bring a third-party for the sole purpose of identifying the stolen property

Question 57

If police do a search or an arrest with an invalid warrant, what happens?

Answer 57

Unless exigent circumstances apply, that will be a violation of the fourth

Question 58

In what situation would a search that was done according to an invalid warrant not require the exclusion of any evidence that was found?

Answer 58

If the police were acting in good faith on the basis of an objectively valid warrant as long as the invalidity was due to an error by the issuing magistrate

Question 59

Warrantless searches are generally considered to be what?

Answer 59

Unconstitutional

Question 60

What are the seven major warrant exceptions that allow a search without a warrant?

Answer 60

– SITLA
– automobile exception
– plainview
- consent
– searches pursuant to a stop
– hot pursuit
– exigent circumstances

Question 61

If police are just issuing a traffic citation and not making an arrest, can they search the driver or the car for contraband?

Answer 61

No

Question 62

If police pull someone over for a traffic violation and notice a bulge in the defendant’s jacket that they believe is a weapon, can they do a full search of his person?

Answer 62

Yes, under search incident to lawful arrest because they had a reasonable suspicion that the defendant was armed

Question 63

What is the rationale behind the warrant exception for automobiles?

Answer 63

There’s a lesser expectation of privacy in an automobile, boat, or airplane, and their inherent mobility requires prompt action

Question 64

If a drug dog alerts outside of a vehicle, what does that do?

Answer 64

Gives probable cause to search a vehicle for narcotics

Question 65

When the police have probable cause to search a vehicle, can they seize the vehicle and search it later even if there’s enough time to get a warrant between the seizure and the search?

Answer 65

Yes

Question 66

Under the automobile exception, can police inspect a container that is in an automobile?

Answer 66

Yes, if they have probable cause to believe it contains contraband or evidence

Question 67

Does the fourth amendment require police officers to advise bus passengers of the right not to cooperate or to refuse to consent to a search?

Answer 67

Not so long as a reasonable person would have felt free to decline the request to search or otherwise terminate the encounter

Question 68

Can police officers randomly stop vehicles to check the license and registration?

Answer 68

Not without a reasonable suspicion of wrongdoing since this gives too much discretion to the officer. This is OK if the stops are random and based on a fixed formula like every fifth vehicle.

Question 69

Why are police allowed to set up drunk driving checkpoints but they can’t set up checkpoints to search for illegal drugs?

Answer 69

Because drunk driving checkpoints protect the public whereas illegal drug ones violate the fourth amendment since their primary purpose is an interest in crime control

Question 70

If the police lawfully stop a vehicle, can they ask all of the occupants of the vehicle to exit even without any suspicion that any of them have been engaged in criminal activity?

Answer 70

Yes

Question 71

What power do customs officials have with regard to stopping vehicles?

Answer 71

They can do this at permanent checkpoints that are located at or near the border without any requirement of a reasonable belief that the occupants are illegally entering the country

Question 72

What is involved in the special-needs doctrine as it relates to warrant?

Answer 72

This is an exception to the requirement of individual suspicion for searches that allows a warrantless and suspicionless search when special needs that are beyond normal law-enforcement needs make getting a warrant impracticable. Then the cops can use checkpoints to do brief seizures in response to a public safety danger that can’t be addressed by complying with the normal rules for suspicion and warrants.

Ie: sobriety checkpoints, searches for recently escaped prison inmates, counterterrorism checkpoints, searches for suspects of a recent crime

Once the court finds that the primary purpose was a special need, it must do a reasonableness check through a balancing test that looks at the nature of the privacy interest involved, the degree of governmental intrusion, and weighs it against the immediacy of the government’s needs and the efficacy of the program to address them

This Hass to be based on a fixed formula that doesn’t allow the officers discretion

Question 73

What is an example of the special-needs doctrine as a warrant exception?

Answer 73

If police have heightened intelligence reports that there could be a subway bombing, they can randomly search bags of subway passengers. But they can only look in bags that could conceal a bomb

Question 74

Police can seize property under the plain view doctrine if what?

Answer 74

– the police are lawfully present in the place where the objects can be seen
– the officers have a lawful right of access to the object
– it is immediately apparent that the object is incriminating

Question 75

Under the plain view doctrine can police officer move objects to get a better view?

Answer 75

No

Question 76

What is involved in the warrant exception of consent?

Answer 76

An individual can waive his fourth amendment rights as long as it is voluntary

Question 77

What does it mean that consent to a search must be voluntary?

Answer 77

It has to be a voluntary intelligent decision that is made without coercion, although the police do not have to tell the defendant that he has a right to withhold consent. This is based on the totality of the circumstances. Consent cannot be obtained by duress, fraud, or coercion. Although certain situations provide an assumed voluntariness because of the behaviour the person is engaging in such as travelling by plane or being in a regulated business. Consent can be revoked at any time and then the search must cease

Question 78

Who controls the scope of a search when consent is the reason for doing a search?

Answer 78

The consenting party. Any contact that exceeds that scope is unlawful

Question 79

If a co-tenant is present at the time of a search and does not object to it, does he have standing to object to the reasonableness of the search later?

Answer 79

No

Question 80

What is a stop?

Answer 80

A momentary detention accompanied by limited questioning of a criminal suspect. This can happen in the suspect’s home, vehicle, or on the street

Question 81

Is a stop considered to be a seizure?

Answer 81

Yes

Question 82

What is required to do a stop?

Answer 82

You must have reasonable suspicion to believe that criminal activity may be afoot

Question 83

What is reasonable suspicion?

Answer 83

A belief based on articulable information that is more than a mere hunch that the suspect has or is about to engage in illegal or criminal activity. Objective basis

Question 84

What is the hot pursuit warrant exception?

Answer 84

Police can enter and search a private dwelling while they are in reasonable pursuit of a fleeing suspect

Question 85

Under the hot pursuit exception to a warrant, when can police use force?

Answer 85

If it is reasonable under the circumstances to stop a fleeing suspect. They can use deadly force if needed to stop a fleeing suspect who is endangering innocent bystanders

Question 86

When can police do a warrantless search and seizure of evidence in or on a suspect’s body?

Answer 86

• if there’s probable cause to believe that the nature of the evidence makes it easily destroyed or likely to disappear before a warrant can be gotten, and
  – the procedure for seizing the evidence is reasonable

Question 87

What is an example of an exigent circumstance that would require removing evidence from someone’s body?

Answer 87

Some of that has just been suspected of killing another person and may have DNA evidence under his fingernails can easily remove or destroy this evidence, so police can obtain it from his body by reasonable means

Question 88

As of 2013 what is the rule about police getting blood alcohol evidence from a drunk driving suspect?

Answer 88

Even though this evidence will diminish overtime, police must generally get a warrant before they can take the blood of a drunk driving suspect

Question 89

When can police enter a home without a warrant under the exigent circumstances exception?

Answer 89

If they have a reasonable belief that someone in the home is in serious imminent harm

Question 90

When can police do a warrantless search of a fire scene?

Answer 90

A few hours after the fire to determine its causes, but several days later to get evidence of arson is not allowed without a warrant

Question 91

Under what circumstances can police do a search of a crime scene without a warrant?

Answer 91

To seek other victims or a remaining killer

Question 92

What are some situations where an administrative search would be OK without a warrant?

Answer 92

– businesses that are traditionally subject to extensive regulation and affect an important public interest
– search of a storage room of a fire arms warehouse during reasonable hours
– search for highly contaminated food

Question 93

What are some examples of extensively regulated industries that administrative searches can be done on?

Answer 93

• pharmacies
  – liquor distributors
  – businesses that need a license to do their specific business

Question 94

Administrative warrants require a lesser showing of what?

Answer 94

Probable cause

Question 95

What are situations where an administrative warrant requires something less than strict probable cause?

Answer 95

– when reasonable standards exist for building inspections like municipal, health, or safety functions
– if the search is not for the purpose of criminal investigation
– for drug testing railroad employees associated with an accident or customs agents seeking a promotion
– in schools there’s a right to do searches as long as there are reasonable grounds that the search will turn up evidence that a student has violated the law or the rules of the school

Question 96

What are the things that it’s unresolved about whether a student has a legitimate expectation of privacy in?

Answer 96

Lockers, desks, and other school property

Question 97

Why can child and social services officers do an inspection of a home without a warrant?

Answer 97

Because they are not doing a criminal investigation

Question 98

Under what circumstances do border crossing agents not need probable cause?

Answer 98

As long as they are doing a routine search that is not particularized for a specific person or a specific property

Question 99

Where can border crossing and checkpoint searches happen?

Answer 99

• any port of entry into the United States
  – international borders
  – international airports
  – post offices where foreign mail enters

Question 100

What is the only time that reasonable suspicion is required for a border search?

Answer 100

If there’s going to be an unusually intrusive search like a body cavity search or one that results in the destruction of property

Question 101

What is wire tapping?

Answer 101

When police use an electronic surveillance device without the suspect’s knowledge or consent

Question 102

What are situations that a warrant can be issued for police to do wire tapping?

Answer 102

– if they have probable cause that a crime has been or is being committed
– if the warrant names the suspects and describes the particular conversation to be overheard, and
– the wire tap is only valid for a brief period

Question 103

In what situation can wire taps be done without a warrant?

Answer 103

Foreign matters of national security

Question 104

If the president requests a wire tap of a domestic citizen without a warrant, can that happen?

Answer 104

No

Question 105

When can a government employer do a search without a warrant?

Answer 105

He can do a non-investigatory work related search to investigate work related misconduct without a warrant. This can be a search of electronic communications if it is reasonable and justified at the inception, and the measures that are used reasonably relate to the objectives of the search, and are not excessively invasive

Question 106

In the case that involves the police department issuing pagers to its officers with a contract that specified a monthly character limit and fees for going over and one officer constantly went over, so the police chief requested that the service provider give a transcript of the pages to determine if the messages were work related or personal, and it turned out they were personal so the officer was disciplined, is that a proper government employer search that doesn’t require a warrant?

Answer 106

Yes, because the search was reasonable and for a work related purpose