S&S + Warrants (Module 3)

Question 1

How to Analyze a Search and Seizure

Answer 1

1. Is there government conduct?
2. Did the person have a rxble expectation of privacy in the area (i.e., do they have standing to challenge as unrxble)
3. Was there a valid warrant?
4. If no warrant, did S/S fall under one of the 6 warrant exceptions?

Question 2

Standing to Challenge a S&S

Answer 2

Person must have a rxble expectation of privacy with respect to the place searched/item seized

Person has rxble expectation of privacy anytime:

1) they own or have a right of possession to the place searched

2) the place was their home

3) they were an overnight guest

4) they own the property seized (can’t have been abandoned or something like that)

Question 3

Governmental Conduct (S&S)

Answer 3

• 4th Amend only protects aginst gov conduct (police, gov agents, or private people working at direction of police)
• does not protect against searches by private police (like campus police)

Question 4

Things Held Out to the Public (no rxble expectation of privacy)

Answer 4

• sound of your own voice
• handwriting
• bank account records
• anything viewable from public airspace
• odors eminating from car or luggage
• garbage set out on the curb
• abandoned property

Exceptions:
- cell site location data
- police can’t use technology that’s not in general public use (like thermal imaging) when without that tech it would be a physical intrusion on the person’s legit expectation of privacy

Question 5

Valid Warrant Requirements

Answer 5

1) Probable Cause (based on the totality of the cirumstances)

2) Particularity (of places and items to be seized)

3) Issued by neutral/detached magistrate

Note:
- may be anticipatory
- can authorize search of a 3P, nonsuspect premises if PC to believe evidence is there

Question 6

Use of Informants for a Warrant

Answer 6

An affidavit for a warrant based on informer’s tip must meet TOC test; the informant must be:

1) reliable
2) credible
3) legit basis for knowledge for the tip

Question 7

Invalid Affidavit for Warrant

Answer 7

D must prove that the affidavit had all of these elements:

1) included a false statement
2) the affiant intentionally/recklessly included the false statement; AND
3) the false statement was material to the finding of PC

Extremely hard to prove

Question 8

Execution of a Warrant

Answer 8

1) no unrxble delay between issuance and execution

2) must knock/announce
- if have rxble suspicion that doing so would be dangerous or futile don’t have to
- if don’t, evidence seized is still admissible cops just subject to civil liability

3) no 3P present with police unless they’re there to identify stolen property

4) scope of the search is limited to where it is rxbly necessary to find the items described in the warrant

5) can’t search other people in the house, but can frisk if rxble suspicion they have a weapon