MBE Criminal Procedure - 4th Amendment Search/Seizure Flashcards
Search & Seizure 4 Issues/Questions
(I) Is the search or seizure governed by the 4th Amendment?
(II) Does the search warrant under which criminal evidence was gathered satisfy 4th Amendment requirements?
(III) Does the search or seizure conducted without a warrant satisfy 4th Amendment requirements?
(IV) To the extent that evidence violates 4th Amendment, is it still admissible?
Is the search or seizure governed by the 4th Amendment? (4 Questions to ask)
(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 4th Amendment?
(3) Did a government agent:
(a) physically intrude on a protected area to obtain information?
(b) violate an individual’s reasonable expectation of privacy in a protected area or item?
(4) Did the individual subjected to search have standing to challenge government agent’s conduct?
Was search or seizure by a government agent?
Government agents include: (1) publicly paid police; (2) private citizens acting at direction of police; (3) private security guards deputized with power to arrest; and (4) public school administrators
Was the search or seizure of an area or item protected by the 4th amendment?
(1) Persons
(2) Houses: includes hotel rooms and curtilage (area of domestic use immediately surrounding house like front porch or fenced yard)
(3) Papers: personal correspondence
(4) Effects: personal belongings, such as purses and backpacks
Did government agent (a) physically intrude on a protected area to obtain info (b) violate an individual’s reasonable expectation of privacy in a protected area or item?
a) physical intrusion: use of GPS tracking device on a vehicle to monitor movements
b) violation of individual’s reasonable expectation of privacy. Must show: (1) an actual or subjective expectation of privacy (subjective); (2) that the privacy expectation was reasonable (objective)
Did individual subjected to S&S have standing to challenge agent’s conduct?
- Must be personal privacy rights, not a third party’s
- There is always standing in home for owner, person who resides there, overnight guests
- –Overnight guests only have standing in areas they are expected to access
- No standing for persons using a residence solely for business purposes
- Owners of seized property only have standing if they have expectation of privacy in the area from which the property was seized.
- Car passengers have no expectation of privacy in vehicle.
Does the search warrant under which criminal evidence was gathered satisfy 4th amendment requirements? (4 Questions to Ask)
(1) Was the warrant issued by a neutral and detached magistrate?
(2) Is the warrant supported by probable cause and particularity?
(3) If not, did police reasonably rely on a defective warrant in good faith?
(4) Was the warrant properly executed by the police?
Was the warrant issued by a neutral and detached magistrate?
judicial officer ceases to be neutral when conduct demonstrates bias in favor of prosecution.
Is the warrant supported by probable cause and particularity?
(1) Probable Cause: requires proof of fair probability that contraband or evidence of crime will be found in area searched.
- –hearsay is okay for this purpose
- –informant tips okay if police can corroborate enough of tipster’s info to allow magistrate to make a “common sense, practical” determination that probable cause exists based on totality of circumstances.
(2) Particularity: search warrant must specify (1) place to be searched (2) items to be seized
- –must have limits
Does an officer’s good faith save a defective search warrant?
officer’s good faith overcomes constitutional deficits unless one of four categorical exceptions applies
(1) The affidavit supporting warrant is so egregiously lacking in probable cause that no reasonable officer would have relied on it
(2) Warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid
(3) Affidavit relied upon by magistrate contains knowing or reckless falsehoods that are necessary to probable cause finding
(4) Magistrate is biased in favor of prosecution
Was the search properly executed by police?
(1) Did officers comply with terms and limitations?
—MD - warrant must be executed within 15 days of issuance
(2) Did officers comply with “knock and announce” rule?
unless officer reasonably believes it would be: (1) futile OR (2) dangerous OR (3) would inhibit the investigation
—MD - judges cannot issue a “no knock warrant”
Is warrantless search through which criminal evidence was gathered valid under any of the 8 exceptions to warrant requirement? (The 8 Exceptions are…)
ESCAPIST: (1) Exigent Circumstances; (2) Search Incident to Arrest; (3) Consent; (4) Automobile; (5) Plain View; (6) Inventory; (7) Special Needs; (8) Terry “Stop & Frisk”
Exigent Circumstances (three types)
(1) Evanescent Evidence: evidence that would dissipate/disappear in time it would take to get warrant (fingernail scrapings, etc.)
(2) Hot Pursuit: allows police to enter home of suspect or 3rd party in pursuit of fleeing felon
(3) Emergency Aid Exception: may enter house if objectively reasonable basis for believing person inside house is in need of emergency aid or to prevent injury
Search Incident to Arrest
For officer safety and to preserve evidence.
- Arrest must be lawful
- Contemporaneous in time and place with arrest
- Scope is Wingspan: Can search body, clothing, and any container within arrestee’s immediate control
- Automobiles: may search interior cabin, but not trunk.
- Once officer has secured arrestee - officer can’t search auto unless there is reason to believe evidence relating to crime arrested for.
Consent to Search
must be voluntary and intelligent, but Police need not tell person they have right to refuse consent
- Scope: all areas reasonable officer would believe permission to search was granted for
- Apparent Authority: someone without actual authority can grant consent if officer reasonable believes they have actual authority.
- Shared Premises: Any resident can consent to search of common areas. Objecting party prevails in dispute.
