Search and Seizure Flashcards
To determine whether a search or seizure is governed by the 4th amendment, we must ask 4 questions (4 elements):
- Executed by government agent?
- From an area or of an item protected by the 4th amendment?
- Physical intrusion by a government agent or violation of a reasonable expectation of privacy?
- Does the individual subject to the search or seizure have “standing”?
What 4 categories of government agents are most important for the bar (in order of importance)
- Police (on or off duty)
- Private citizens if and only if acting at the direction of police
- Private security deputized with the power to arrest (campus police at a state school)
- Public school officials such as principles or vice principals
The 4th amendment protects individuals from unreasonable search and seizure of these 4 items or areas
1 their persons (bodies)
- Houses (including domestic use area outside house (porch, yard) & hotel rooms)
- Papers (letters)
- A facts (vehicles, purses, backpacks)
The following 8 items are not protected under the 4th amendment (Patty achieved a glorious victory over her opponent)
- Paint on your car
- Accounting records held by the bank
- Air – anything that can be seen from public airspace
- Garbage left in public
- Voice – the sound thereof
- Odors
- Handwriting
- Open fields – anything that can be seen in or across
You don’t have a reasonable expectation of privacy in anything you provide _______ to third parties
Knowing exposure
There are 2 ways in which searches and seizures by government agents can implicate a an individual’s 4th amendment rights
- Physical intrusion on a constitutionally protected area to obtain information (a tracking device on a car was an intrusion)
- The search or seizure of a constitutionally protected area violated an individuals reasonable expectation of privacy
The violation of a reasonable expectation of privacy has 2 components 1, 1 subjective one objective
- Subjective: the defendant had an actual subjective expectation of privacy in the area searched or items seized, and
- That privacy expectation was “one that society recognizes as reasonable”
The police search is presumptively unreasonable if it uses a device that is not?
Available for public use, and the police use it to explore the details of a home that officers couldn’t have known without the technology (heat vision).
To have standing to challenge the search or seizure, an individual must be bringing claim with respect to (A) his own? Or (B) a 3rd parties? privacy rights.
You may only bring a claim with respect to your own PERSONAL privacy rights, not those of a 3rd party
If you’re an overnight guest in someone’s house, in what areas do you have a reasonable expectation of privacy?
In the areas you can reasonably be expected to access: living room dining, dining room, bathroom, bedroom
If you are merely using a someone else’s residence for business purposes, do you have a reasonable execution of privacy in the property if you are not staying overnight?
No, you do not (apartment of acquaintance to bag cocaine).
If a man hides drugs in his girlfriend’s purse, does he have a reasonable expectation of privacy with respect to the drugs when they are seized?
No, because he does not have a reasonable execution of privacy in the AREA from which it was seized. Only to girlfriend does.
Do passengers in the car have a reasonable expectation of privacy with respect to searches of the automobile?
No, only the owner or driver.
Under New York law, passengers can challenge the finding of a what in a car, if it is attributed to them?
Passengers can challenge the possession of weapons, if possession is attributed to them
There are 4 requirements for a warrant under which criminal evidence is gathered to satisfy the 4th amendment. Name them
- Issued by a NEUTRAL and DETACHED magistrate
- Supported by PROBABLE CAUSE and PARTICULARITY
- If not so supported, officers relied on the defective warrant in good faith (New York rejects good faith doctrine)
- Warrant PROPERLY EXECUTED by the police
When is a magistrate not “neutral and detached”?
When her conduct demonstrates a bias in favor of the prosecution, e.g., if your salary is tied to number of warrants issued
Probable cause requires ____ ________ that contraband or evidence of crime will be found in the area searched
Fair probability
Is hearsay admissible for purposes of probable cause?
Yes, absolutely
When may police use anonymous informants tips at common law for purposes of probable cause?
When there is enough information for the MAGISTRATE to make a “commonsense, practical” determination that probable cause exists based on a TOTALITY of the circumstances
Under New York law, probable cause is evaluated under a stricter standard. When applying for search warrant the government must establish 2 things
- The informants BASIS OF KNOWLEDGE, and
2. The informants RELIABILITY or VERACITY
To satisfy the particularity requirement to get a warrant, it must specify 2 things:
- The place to be searched
- The items to be seized
a general warrant cannot be given authorizing a fishing expedition
By common law, a warrant that is invalid due to the absence of probable cause or particularity can be saved by an officer’s “good faith.” In New York?
In New York, a cop’s Good faith does not save a defective warrant.
An officer is good-faith reliance on a defective search warrant does not save it, if one of the 4 categorical exceptions to good-faith applies:
- If the affidavit supporting the warrant is EGREGIOUSLY lacking in probable cause (a bare-bones affidavit)
- The warrant is FACIALLY DEFICIENT in PARTICULARITY
- The affidavit contains KNOWING or RECKLESS FALSEHOODS
- The magistrate is biased
There are 2 aspects to the inquiry of whether a search warrant was properly executed by the police. Name the 2
- Whether the officers complied with the terms and limite of the warrant
- Whether the officers complied with the “knock and announce” rule
If the warrant says you can search for lost big-screen TVs, may you search a backpack?
No, this would go beyond the limits of the warrant.
Officers must knock and announce their presence and purpose before FORCIBLY entering a place to be searched, unless the officer reasonably believes doing so would be (3 things)
- futile, or
- dangerous, or
- inhibit the investigation
There are 8 exceptions to the warrant requirement when executing a search through which criminal evidence is gathered (ESCAPIST)
- Exigent circumstances
- Search incident to arrest
- Consent
- Automobile
- Plainview
- Inventory
- Special needs
- Terry “stop and frisk”
There are 3 types of exigent circumstances the provide an exception to the warrant requirement
- Evanescent evidence (scraping under fingernails)
- Hot pursuit of a fleeing felon (police can enter the suspects or a 3rd parties home to search for a fleeing felon, and seize any evidence in plain view)
- “Emergency aid” exception – police may enter a residence if there is an OBJECTIVELY REASONABLE basis to believe the person inside needs EMERGENCY AID to address or prevent an injury
You don’t need a warrant when executing a search incident to arrest. 1. What is the timing requirement? 2. What is the geographic scope requirement?
- The timing must be contemporaneous
2. The officer may search the WINGSPAN of the suspect, which includes body, clothing and any containers within reach
When executing a search incident to arrest, does it matter which offense you are arrested for?
No, doesn’t matter at all.
Under New York law, when an officer is executing a search incident to arrest, when may he search containers within the wingspan of the suspect?
When cop suspects that the arrestee is armed
What is the permissible scope of an automobile search incident to a custodial arrest?
The interior cabin, including closed containers, but not the trunk
What is the difference between searching automobile incident to custodial arrest when the arrestee is secured versus unsecured?
MBE: once an officer has secured an arresstee (e.g., handcuffing him and placing him in the squad car), the officer can only search the car under the belief that it contains EVIDENCE RELATING TO the crime for which the arrest was made.
Under New York law, police cannot search containers inside the car after the occupant is out of the car
Officers do not need a warrant to execute a search with consent. 1. What is the standard for consent? 2. What is the scope of consent? 3. What is the apparent authority issue?
- Consent must be voluntary
- areas for for which a reasonable officer would believe consent was granted
- Consent from someone who appears to have authority is valid under the 4th amendment (the girlfriend with the keys to the apartment)
When there are shared premises, who may consent to searches of the common area without a warrant? Separately, if cotenants disagree about searches of the common area, who prevails?
With cotenants, either resident can consent to searches of the common area. However, if they disagree as to the search, the OBJECTING party prevails.
What standard must police meet to execute a search of an automobile without a warrant?
Police need PROBABLE CAUSE to believe that contraband or evidence of crime will be found in the vehicle
When executing a search of an automobile, where can the police officer search?
The entire vehicle (even the trunk), and they may open any package, luggage, or other container that may reasonably contain the items for which there was probable cause to search
For a traffic stop to lawfully turn into a warrantless auto search, an officer does not need probable cause at the time he pulled over to vehicle, provided that?
Provided that he acquires probable cause before initiating the search
The Plainview doctrine: 3 requirements for seizure of an item in Plainview without a warrant
- Lawful access to the PLACE from which the item can be plainly seen
- lawful access to the ITEM ITSELF
- The criminality of the item must be IMMEDIATELY APPARENT
Inventory searches do not require a warrant. They commonly occur in 2 contexts
- When arrested people are booked into jail
2. When vehicles are impounded
Inventory searches w/o warrants are constitutional, provided 3 things
- The regulations governing the searches are reasonable in scope
- The search itself complies with those regulations
- The searches conducted in good faith – solely motivated by the need to safeguard the owners possessions or ensure officer safety
The government is not allowed to execute suspicionless drug tests where their primary purpose is to gather criminal evidence for general use. However, the Supreme Court has approved warrantless random drug tests in the following 3 situations, among others:
- A railroad conductor, following impact accident
- A customs agent responsible for drug interdiction
- Public school students participating in ANY extracurricular activity
Are warrantless suspicionless searches of a parolee and his home permissible?
If they are part of the terms of parole, they are permissible without a warrant.
When may a student be searched warrant loosely at school (including their effects)?
The search must be reasonable at its inception and not excessively intrusive (the strip search of a 13-year-old for Advil was excessively intrusive relative to the danger to other students).
Do routine border searches require a warrant?
No, citizens and noncitizens alike do not have 4th amendment rights at the border with respect to routine searches of their person and effects. This extends to searching incoming international mail.
Are Terry stop and frisks one thing?
No. Terry stop is different from Terry frisk. Think of them separately.
What is a Terry stop?
A Terry stop is a brief detention or seizure for the purpose of investigating suspicious conduct
Where can a Terry stop take place?
Anywhere, a street, a car, an airport concourse
What are you “seized” for 4th amendment purposes?
When a reasonable person would not feel free to leave or free to decline an officer’s request to answer questions
In evaluating whether an individual has been seized by questioning by law enforcement consider these 3 things?
- If the officer brandishes a weapon
- The officer’s tone and demeanor
- Whether the individual was told she could refuse to consent
MBE: When being pursued by a police officer, an individual is only seized if?
An individual is seized by an officer’s pursuit if he SUBMITS to the officer’s authority by stopping or if the officer PHYSICALLY RESTRAINS him
Under New York law, if you are being pursued by police officer, at what point are you seized for purposes of 4th amendment analysis?
Under New York law, you are seized by the police pursuit itself. This is before you submit to the officer’s authority and before the officer physically restrained you.
At a traffic stop that is a Terry stop, who may challenge the legality of the stop?
Either the driver or the passenger
In a traffic stop is a Terry stop May the officer order people out of the car?
yes
What are the rules for a dog sniffing around during a traffic stop that is a Terry stop?
A dog is allowed to sniff around provided does not UNREASONABLY PROLONG the stop, e.g., a dog can sniff the outside of the car while the cop is checking the license and registration.
What is a Terry Frisk?
A Terry Frisk is a patdown of the body and outer clothing for WEAPONS that is justified by an officer’s belief that a suspect is armed and dangerous
What can officer seize in a Terry Frisk and when?
MBE: An officer Macy’s a weapon or an item she recognizes as contraband WITHOUT MANIPULATING THE ITEM (e.g., an officer cannot take a bag of cocaine because you wouldn’t know it was cocaine rather than baking powder without manipulating it)
Under New York law, how does seizure during a Terry Frisk differ from multistate?
In New York, officers can seize an item ONLY if it reasonably appears to be a weapon.
On the multistate, you can seize weapons or contraband (provided you don’t manipulate the contraband)
Terry Car “frisks”: When conducting a traffic stop, that officer believes that the suspect is dangerous he may search?
The passenger cabin of the car, limited to areas where a weapon may be placed or hidden
How man officer effectuate a “protective sweep”
When making an in-home arrest, an officer may sweep the area adjoining the arrest looking for CRIMINAL CONFEDERATES (to protect officer safety)
What evidentiary standard applies to Terry stops and frisks?
REASONABLE SUSPICION, which is less than probable cause. It requires SPECIFIC and ARTICULABLE facts supporting the belief of criminal activity – PURELY OBJECTIVE STANDARD. For Terry frisks, this requires belief that suspect is ARMED AND DANGEROUS.
Terry frisks are fundamentally about?
OFFICER SAFETY!!! They’re not grounds for a general search for criminal evidence.
Can informants tip satisfy the reasonable suspicion standard required for Terry stops and frisks?
Yes, provided that it contains sufficient predictive information, corroborated by cops, to establish reliability
Is an arrest a seizure for purposes of the 4th amendment?
Yes!
Is a warrant required for an arrest in a public place? When is a want required for an arrest?
In a public place, no only probable cause is required. A warrant is required for arrest in a person’s home.
What is the time limit on a Terry stop?
There is no time limit, so long as the police act in a diligent and reasonable manner in confirming or dispelling suspicions.
For a roadblock to be constitutionally valid, 2 things must be the case:
- Cars must be stopped on a neutral, articulable basis
- The roadblock must be designed to serve purposes closely related to a particular problem relating to automobiles and their mobility (e.g., for drunk drivers.)
May police detain a suspect to prevent him from going home, while the police get a warrant?`
Yes, such detention is allowed for a reasonable time to prevent him from destroying drugs
Is seizure of a person for Appearance before a grand jury within the 4th amendment protected?
`No, the 4th amendment does not protect grand jury appearances.
Is a 4th amendment seizure to use deadly force to apprehend the subject?
Yes.
A search warrant issued based on affidavit will be invalid if the defendant establishes the following 3 things:
- A false statement was included in the affidavit
- The speaker intentionally or recklessly included the false statement
- The false statement was material to the finding of probable cause
When the police have a warrant to search a particular property, what may the police do with the occupants found therein?
The police may detain the occupants, but may not search the persons found on the premises unless they were named in the warrant.
Do administrative searches require warrants?
No, for example searches to seize spoiled or contaminated food, businesses within a heavily regulated industry, airline passengers, government employees desks and file cabinets, railroad employees, customs officers, public school students an extra curricular activities.
Is wiretapping a surgeon in the 4th amendment?
Yes. Yes, requires a valid warrant authorizing the wiretap.
Methods of obtaining evidence and keeping them out of court: what is the catchall standard?
Evidence is inadmissible under the due process clause if it was obtained in a manner offending a “sense of justice.”
Ev gathered in unconst search is _____. This is called the?
inadmissible = EXCLUSIONARY RULE
Unconstitutionally obtained ev is excluded from P’s ______
CASE IN CHIEF ONLY – it can be used to impeach D on cross
failure to comply with knock and announce: when evidence excluded?
never. no one cares. it can be admitted
If police error causes evidence to be obtained unconst, it is excluded if the error is one of three things:
deliberate, reckless, or grossly negligent (bookkeeping error by cops doesn’t exclude evidence b/c it’s simple negligence)
unconst obtained evidence: admissible if evidence was obtained by ______ mistake?
reasonable mistake = admissible (e.g., cops accidentally enter two apts)
fruit of poisonous tree: 1. direct evidence vs. 2. derivative evidence
- ev directly linked to const violation
- ev obtained secondarily (derivatively)
- -> both inadmissible in P’s case in chief
fruit of poisonous tree: how do Ps get around it? 3 ways to get ev in to court
- independent source from unconst means
- inevitable discovery (dead girl’s body)
- attenuation (time purges unconst conduct - e.g., D later returns to confess)
wiretap warrants: Screen Telephone Calls Carefully
- Suspected person named
- Time period limited
- specific Crime-related PC
- Conversations to be tapped should be particularly described
If someone on the other side of the phone is tapping the wire, 4th Am protects you?
No. You assume risk by talking to them.
when does arrest occur?
police take in someone against their will for 1. prosecution, 2. interrogation, 3. questioning, 4. finger printing
req’d standard for arrest?
PC
What offenses permit custodial arrest? Even offenses where there’s just a $50 fine?
All offenses give discretion to execute custodial arrest.
when can you execute an arrest: 1. w/o warrant? 2. w/ warrant
- felony arrest w/o warrant allowed w/ PC. misdemeanor arrest w/o warrant if committed in officer’s presence.
- warrant req’d to arrest D in their home.
arrest warrant and search warrant to arrest D in another person’s home.
where traffic stop indicates common criminal enterprise, who can cop arrest?
driver and passengers (e.g., drug trafficking)
In NY, there’s a sliding scale for detentions. What’s required for each of the following?
- minimum intrusion/request for info
- common law right to inquire short of seizure
- stop and frisk
- police pursuit
- auto stop
- arrest
- minimum intrusion/request for info = WHIM OR CAPRICE
- common law right to inquire short of seizure = ASK Qs W/ DETENTION NOT SEIZURE
- stop and frisk = REAS SUSPICION OF A CRIME, PLAIN FEEL DOCTRINE
- police pursuit = REAS SUSPICION
- auto stop = TRAFFIC VIOLATION OR ANY UNIFORM, NONDISCRIM ROADBLOCK
- arrest = PC
NY affords arrestee more protection than US const: 1. what’s req’d to search containers w/in arrestee’s wingspan?
2. absent warrant exception, police may not remove closed containers or bags from car to search them if?
- suspect arrestee is ARMED
2. can’t search car containers ONCE OCCUPANT REMOVED FROM CAR.
