Search and Seizure

Question 1

Who can conduct a “search”

Answer 1

Government official (ie cop) OR one under direction of government (can be a normal person, but Q will tell you whether under gov direction)

Question 2

What is a search

Answer 2

Search = where you have expectation of privacy
*reasonable expectation; some sort of enclosure

**open fields = no expectation of privacy = no search

Question 3

When can they search?

Answer 3

if they have probable cause = reasonable person could conclude items related to criminal activity can be found at the location

Question 4

Warrants

Answer 4

if there is a search, you generally need a warrant
- neutral and detached magistrate determines probable cause issued timely
- specific place, items and/or people and scope detailed in warrant
- informants tip is ok to rely on as long as reliable
- if cops rely on info which turns out not to be valid, search is still ok

Question 5

Scope of Warrants

Answer 5

• once cop finds what they were looking for, per warrant, no further searching is allowed
• cop cannot exceed scope of search
• anything out in the open = admissible because not a search

Question 6

Exceptions to Warrants
(when a warrant is not required)

Answer 6

(1) consent: owner of property may consent OR 3rd party who has actual or apparent authority
(2) Hot Pursuit
(3) Auto Exception - Probably cause that the car has contraband
i.e. amber alert and your car matches description - can search entire care
(4) Exigent Circumstances: Emergency - reasonable belief that evidence may be lost or destroyed
NEVER infer emergency
(5) Search incident to a lawful arrest: person/area within ones wingspan
(6) Protective Sweep allowed if reasonable belief other SUSPECTS are in house
(7) Stop & Frisk: Cops need reasonable suspicion that criminal activity is afoot
- may be stopped to ask you questions if reasonable suspicion
- may frisk if there is reasonable suspicion of weapons on you

Question 7

Warrants & Getting Pulled Over

Answer 7

• if illegal stop (stopped for no reason), anything found = inadmissible
• if legal stop (i.e. speeding), can give you a ticket, but cannot search a closed compartment unless additional probable cause is found

Question 8

Testing Approach for Searches & Seizures

Answer 8

look at facts as a timeline:
- what was 1st interaction with cops/defendant
- why did the cops stop the car
- why did they enter the house

don’t concentrate on what they found! always look as to WHY were they looking initially.