Search and Seizure Flashcards
I. 4th amendment right is a right to be free from unreasonable searches and seizures. Steps:
a. Was there a 4th amendment right
i. Government conduct
ii. Reasonable expectation of privacy
iii. Essay: the ∆ has a 4th amendment right if there is government conduct where ∆ has a reasonable expectation of privacy, or there is intrusion into a constitutionally protected area.
1. Under the exclusionary rule, evidence obtained in violation of the 4th amendment is inadmissible in court
b. Was there standing
c. Was there a warrant (2Ps: probable cause, particularity)
d. Can evidence from an invalid warrant be accepted
e. Was there an exception to the warrant requirement
When are you seized for 4th amd purposes?
a. an individual is seized for 4th amd purposes when based on totality of circumstances, a RP would not feel free to leave or decline an officer’s request to answer questions
b. Must consider 3 factors:
i. whether an officer brandishes a weapon
ii. the officer’s tone and demeanor when interacting
iii. whether individual was told she has right to refuse consent
3. Police pursuit and seizure
a. when being pursued, an individual is seized only if he voluntarily submits or if the officer physically restrains him.
II. Gov’t conduct is required
a. police officer on or off duty
b. Other categories
i. private citizens IFF acting at direction of police
ii. private security guards, only if deputized with power to arrest
1. for ex campus security at public universities
iii. public school administrator, like principals, vice principals
Reasonable expectation of privacy or physical intrusion of constitutionally protected area
III. (basically standing)—there must be a 1)reasonable expectation of privacy or a 2)physical intrusion into a constitutionally protected area. No expectation of privacy to places held out to the public.
a. Includes:
i. persons
ii. houses including hotel rooms
1. includes curtilage, an area adjacent to the hoe to which activity of home life extends, like front porch or backyard
iii. papers including personal correspondence
iv. effects—personal belongings like purse, bags, cars
v. Police search presumptively unreasonable under 4th amendment when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion.
1. For ex “thermal imaging device” to detect hot spots inside the home where homeowners placed high-intensity lights to grow pot.
b. Does not include (Mnemonic: public observation generally obliterates 4th amendment protection)
i. P: physical characteristic (sound of voice, style of handwriting_
ii. O: odors emanating from car or luggage
iii. G: garbage left at curbfor collection
iv. O: open fields, anything that can be seen in or across open fields
v. F: financial records held by a bank, routinely viewed by bank employees
vi. A: Airspace, anything that can seen below when flying in public airspace
1. If over your home/ targeting your home—highest expectation of privacy (can’t fly too low over home). Need a warrant
a. If flying in typical navigable airspace, just happen to see something happen, do not need a warrant.
b. Can only fly over residence and peer down as far as naked eye can see. CAN use other devices
i. But only devices that are readily obtainable.
2. If over a business – much lesser expectation of privacy. Can use special lenses for example. Sophisticated information.
3. Open fields—police can do whatever they want, even if your field is fenced in.
vii. P: pen registers: devices that give metadata on the phone no someone has dialed.
Standing requirement for 4th amdt challenge
a. Person can only object to evidentiary search and seizure if they have standing, meaning it was their OWN PERSONAL reasonable expectation of privacy
i. No automatic standing if ∆ property is seized during the illegal search of a 3rd party’s premises
ii. No automatic standing for co-conspirators
iii. Does S & S violate the INDIVIDUAL’S expectation of privacy
1. Does convey standing
a. owners
b. residents
c. overnight guests, at least as to areas that overnight guests can be expected to access. for ex living room, but not the closet in host’s bedroom
- Doesn’t convey standing
a. users of someone else’s residence solely for biz purposes doesn’t convey standing.
i. For ex apartment of acquaintance used only to bag cocaine.
b. ownership of the property seized is sufficient only if the owner has reasonable expectation of privacy in the area from which the property is seized.
i. hiding weed in your gf’s purse ≠ sufficient ownership because no reasonable expectation of privacy in gf’s purse.
c. no reasonable expectation of privacy if you’re a passenger in the car “merely passengers”
IF YOU DONT HAVE STANDING TO CHALLENGE IT, UNCONSTITUTIONALLY OBTAINED INFORMATION CAN BE ADMITTED AGAINST YOU IN THE CASE-IN-CHIEF
Valid warrant requirement
if a government agent has either physically intruded on a protected area or violated a reasonable expectation of privacy, and the person has standing, then the government must either have 1) a valid warrant, 2) rely in good faith on an invalid warrant, or 3) act pursuant to an exception to the warrant requirement. 4 requirements (Basically, 2Ps (probable cause and particularity, also affidavit and neutral magistrate)
a. Affidavit setting forth circumstances to be submitted to a magistrate
b. Based on probable cause that evidence will be found when executed
i. Must be based on knowledge of reasonable trustworthy facts sufficient to warrant a reasonable person to believe that suspect has committed/ is committing crime
ii. Can use hearsay
iii. Can use informant’s tip even if anonymous
information must not be stale
1. Determine informant information sufficiency based on totality of circumstances. Look to informant credibility and basis of knowledge
2. But cannot base probable cause solely on anonymous tip
iv. Probable cause defective if ∆ shows: false statement, intentional or reckless misconduct AND the false statement was material to the finding of probable cause. Rarely successful, police officer’s honest but unreasonable belief makes it valid.
c. Issued by a neutral and detached magistrate
i. (can’t be biased, for example, salary can’t be controlled by number of warrants issued)
d. Describe with particularity the place to be searched and items to be seized
i. Scope of search is limited to what is reasonably necessary to discover the items described. Can seize any contraband they discover, no matter if specified in the warrant.
ii. Search of persons on premises—cops can detain occupants, but NOT authorized to search people not named in the warrant, or people who left shortly before warrant executed.
VI. If no valid warrant, does an officer’s good faith save a defective warrant?
a. Good faith can overcome constitutional deficits in probable cause and particularity.
b. Categorical exceptions to good faith
i. Egregious lack of probable cause – false statement, intentional or reckless misconduct AND the false statement was material to the finding of probable cause.
ii. Egregious lack of particularity – was it authorizing a fishing expedition?
1. After all, up to judge to make determination of probable cause, must have enough information.
iii. Magistrate bias.
VII. Was search warrant properly executed by the police?
a. Must be by police
b. Must be without unreasonable delay
c. Must knock & announce, and wait a reasonable time for admission
i. Exception: exigent circumstances, or suspicion it would be dangerous, futile, or inhibit the investigation.
ii. Violation does not equal suppression of evidence
d. Search is limited, but can seize anything
i. Can only search that which is reasonably necessary to discover items described or areas described in warrant
1. for ex cant look in containers too small to hold the named goods.
ii. Can only seize contraband or fruits of crime, regardless of description in warrant
e. Persons
i. When executing a search warrant, officers may detain occupants found within or immediately outside the residence (e.g. front stairs or adjacent pathway) at time of search
ii. Can conduct a terry pat down if police officer thinks the person is armed and dangerous
iii. Cannot search unnamed persons on the premises (not named in the warrant) and cannot follow and detain them shortly after warrant execution
iv. But can also arrest if there is probable cause, and can search incident to lawful arrest.
1. If police officer walks in because he has a warrant and sees someone in middle of committing crime/ doing something giving rise to probable cause, he may arrest and search incident to that arrest.
2. If you walk in and someone is just sitting around and not named in warrant, can only do a terry pat down if you think they’re dangerous.
Search warrant vs. arrest warrant
f. NB: Search warrant different from arrest warrant: doesn’t give you power to look for evidence at someone’s house where you think the person may be, even if that evidence is in plain view.
Warrant search exceptions list
a. ESCAPIST
i. Exigent circumstances
ii. search incident to arrest
iii. consent
iv. automobile
v. plain view
vi. inventory
vii. special needs
viii. Terry “stop and frisk”
Exigent circumstances search warrant exception
“Exigent circumstances
i. Evanescent evidence: evidence that would dissipate or disaprea in time it would take to get warrant
1. For ex tissue under fingernails
2. Dissipation of alcohol in bloodstream does not automatically create exigency sufficient to justify warrantless BAC test
ii. Hot pursuit of fleeing felon: cop can enter home of a suspect or 3P when searching for a fleeing felon. Any evidence of a crime discovered in plain view while searching for the felon is admissible
iii. Emergency aid exception: may enter without a warrant when objectively reasonable basis for believing that a person is inside is in need of emergency aid to address or prevent injury
Search incident to arrest warrant exception
4th amd rights begin to melt away, bc probable cause already established. Cops also need to make sure you don’t have guns or evidence on you while going to jail.Balancing of private and government interests.
i. Arrest: also called custodial arrest, must be lawful.
ii. Timing: must be contemporaneous in time and place with the arrest
iii. Geographic scope: the wingspan, which includes body, clothes and containers within arrestee’s immediate control, no matter what offense for which arrest is made
1. Cell phones: cops may not without a warrant search digital data on the cell phone. but they may examine cells physical aspects to make sure not a weapon
2. DNA evidence: may lawfully take dna sample by cheek swab if arrested for serious offense
3. Drunk driving: warrantless breath tests ok but not blood tests
iv. Ex: david arrested for DUI, officer finds crack cocaine inside pocket. YES allowed, bc contraband found in a container inside clothing, and therefore within arrestees immediate control
1. can prosecute for refusing to consent to breathalyzer
v. Automobiles searched incident to a custodial arrest
1. secured vs. unsecured arrestees: once an officer has secured an arrestee (eg. handcuffs) officer can search car only if she has reason to bleive the car may contain evidence RELATING TO CRIME FOR WHICH ARREST WAS MADE
2. permissible scope: interior cabin, including closed containers but not the trunk
3. recently—has been limited. Police can only search passenger area after arrest if directly connected to arrest OR if trying to preserve evidence or protect police officer safety.
Summary of car stuff
- IF you have a reasonable suspicion, can stop a vehicle and detain the people within it. But you cannot search the vehicle or the people. You can do a Terry frisk of the person if reasonable suspicion.
- Vehicle stop is basically a terry frisk.
- If then something rises to the level of probable cause, then you can search the person or the vehicle.
- But even if probable cause, no right to search entire vehicle. Can only search where there is probable cause.
- For example, I see you coming out of a drug den and put something in the trunk, can only search the trunk.
- If arresting, can search the person. If not arresting→ need a warrant or pursuant to an exception. Unless a terry frisk
Consent warrant exception
i. Consent must be voluntary . For it to be valid, cops don’t have to tell someone that she has the right refuse consent.
ii. Scope: all areas for which a reasonable officer would believe permission to search was granted
1. power is with consenting party
iii. “Apparent” authority: if cop obtains consent to search from someone who lacks actual authority to grant it, consent is still valid, provided cop reasonably belived that consenting party had actual authority
1. for ex gf goes to bf’s apartment who is abusing her. even though bf owns it and only one with permission to consent officer reasonably thought the gf was his live in gf.
iv. Shared premises
1. when adults share a residence, any resident can consent to search of common areas
2. however, if co tenants on premises disagree, the OBJECTING party prevails
3. but if objecting co tenant removed for reasons unrelated to refusal (eg lawful arrest), cops MAY rely on the consent of the remaining consenting co-tenant
4. However, one adult does not have the authority to consent to a search of locked containers in a room.
Plain view exception to warrant
3 requirements for seizure of an item in plain view
i. lawful access to the place from which item can be plainly seen
ii. lawful access to item itself
iii. criminality must be immediately apparent.
Inventory searches exception to warrant
i. inventory searches most commonly occur in two contexts
1. arrestees: when they are booked into jail
2. vehicles: when they are impounded
ii. Constitutional, provided 3 reqa
1. regulations governing them are reasonable in scope
2. search itself complies with regulations
3. AND
4. search is conducted in good faith, motivated solely by need to safeguard owner possession and/or ensure officer safety.
a. officer subjective intent does matter (few places in crim law)
Terry stop and frisk warrant exception
Generally, you need probable cause to make an arrest.
stop and frisk are 2 different events
Terry stop & frisks– not an arrest, lower “reasonable suspicion” standard.
Stop is different from the frisk
1. Defined as a brief detention or seizure for the purpose of investigating suspicious conduct. Must have reasonable suspicion supported by articulable facts of criminal activity or involvement in the completed crime (if the source is a tip, must be accompanied by indicia of reliability)
a. STOP can take place anywhere
- Traffic stops—3principles
a. Both driver and the passenger ar seized, such that either can challenge legality of stop
b. officer may in her discretion order either driver or passenger outside car
c. dog sniffs are ok provided the sniff doesn’t prolong the stop
d. cant have car sitting there for 20 minutes waiting for dog to get there.
e. by contrast: cant use dog to investigate home and curtilage as part of 4th amdt.
f. Remember- odors are not something over which you have reasonable expectation of privacy
ii. Terry frisks- patdown of body and outer clothing for weapons that’s justified by officer’s belief that a suspect is armed and dangerous
1. What can you seize in a terry frisk? fundamentally – safety frisks. if during frisk, officer finds something she reasonably believes to be a weapon, it can always be seized.
a. if instead, the officer finds something she recognizes as contraband without manipulating the object, she can seize it as well.
i. a bag of cocaine doesn’t feel like contraband immediately. for ex the coke could just be baby powder.
ii. not applicable to search incident to arrest—there you can take anything. terry frisks are just for cop safety.
- Car frisks—when conducting a traffic stops, if officer thinks suspect is dangerous, he may search the passenger cabin, limited to those areas in which a weapon may be placed or hidden
- Protective sweeps—when making inhome arrest, cop may sweep residence to look for criminal confederates of the arrestee whose presence may threaten officer safety
b. To justify sweep of more remote areas, officers need additional facts sufficient to allow them to conclude that an individual who may threaten officer is present in the area swept
iii. Evidentiary standards. Reasonable suspicion– lower than probable cause
2. How does this standard apply - for terry stops
a. requires specific and articulable facts that inform an officers belief that criminal activity is present
i. officer’s subjective intent is irrelevant. 4th amd only cares about objective reasonableness
b. Applied to terry frisks
i. specifc and articulable facts suggesting a suspect is armed and dangerous.
ii. all we care about in terry frisks is officer safety
- Remebmer, can have authority for stop without authority for frisk
