Search and Seizure Flashcards
4th Amendment
No unreasonable search and seizure (applies to fed gov’t, applies to states through 14th amendment).
Search or seizure by a gov’t actor requires a warrant (or an exception to the warrant requirement).
Exclusionary rule + FOPT.
Search and Seizure Standing
Government Conduct: public police, ind’s at police direction, private police deputized w power of arrest
Reasonable Expectation of Privacy: own, live, overnight guest (not things held out to public)
Warrant Requirements
probable cause (fair prob. E will be found)
particularity
neutral detached magistrate
Warrant Execution
By police w/out unreasonable delay
Scope limited to reasonably necessary to discover specified items
Can detain person but not search
Must knock + announce unless dangerous/futile/inhibit
Warrant Challenges
Intentional/reckless falsehood material to finding PC
Rare unless so lacking in 2 P’s, cop lied magistrate biased
Good faith exception
Warrant Exceptions
1-3. Consent, Stop & Frisk, Auto
4-5. Plain View, Incident to Arrest
6-8. Evanescent E, Hot Pursuit, ER Aid
Warrant Exception - Consent
by one cops reasonably believe can give it
“warrant” negates
each co-owner can withhold
Warrant Exception - Stop + Frisk
stop = reas suspicion of criminal act. supported by art. facts
frisk = reas. belief armed (reach in + take if reas believe to be contraband by plain feel - no manipulation)
Warrant Exception - Auto
Prob Cause (can arise post-stop) that car is/has contraband = search entire car and reasonable containers that could contain item searched for
Warrant Exception - Plain View
Legit cop presence + see item in plain view + reas. belief to be contraband
Warrant Exception - Incident to Lawful Arrest
lawful arrest based on prob cause = contemporaneous (time + place) search of person + wingspan
- -Car: arrestee unsecured or reas. belief that E of arresting offense is in car
- -Inventory: belongings + car
Warrant Exception - Evanescent E
fleeting (could disappear in warrant time)
–need warrant for DUI blood test
Warrant Exception - Hot Pursuit
w/in 15 minutes of fleeing felon (can enter home + have legit presence for plain view)
Warrant Exception - ER Aid
situation threatens health/safety
Exclusionary Rule
E obtained in violation of 4th amendment is inadmissible (doesn’t apply to grand jury or parol proceeding)
FOPT
all E derived from exploitation of illegally obtained E is also inadmissible
–Exceptions: knock + announce violation, ind. source, inevitable disclosure, intentional act of free will
Exclusionary Rule and FOPT Violations
Harmless error (gov’t must show beyond reasonable doubt that conviction would have resulted anyway)
Miscellaneous Searches
Schools: moderate chance of finding E of rule violations + measure reasonably related to obj. + not overly intrusive
Wiretap/Eavesdrop: warrant required except Unreliable Ear (assume risk listener wired) + Uninvited Ear (no attempt to keep private)
