search and seizure

Question 1

evidentiary search and seizure issues should be approached using the following analytical model:

Answer 1

• does defendant have a fourth amendment right (seizure by the government concerning a place or thing in which defendant had a reasonable expectation of privacy) or does the search involve a physical intrusion into a constitutionally protected area?
• did the police officers have a valid warrant (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)?
• if the police officers did not have valid warrant, was the search or seizure within one of the six exceptions to the warrant requirement?

Question 2

government conduct required

Answer 2

the fourth amendment generally protects only against governmental conduct (that is, police officers or other government agents), and not against searches by private persons– including private security guards- unless deputized as officers of the public police

Question 3

physical intrusion into constitutionally protected area or reasonable expectation of privacy

Answer 3

there are two ways in which searches and seizures can implicate an individual’s fourth amendment rights: (i) search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; or (ii) physical intrusion by the government into a constitutionally protected area to obtain information

Question 4

standing

Answer 4

to have a fourth amendment right, a person must have his own reasonable expectation of privacy with respect to the place searched or the item seized. the determination is made on the totality of the circumstances, but a person has a reasonable expectations of privacy any time:

1) he owned or had a right to possession of the place searched;
2) the place searched was in fact his home, whether or not he owned or had a right to possession of it; or
3) hew as an overnight guest of the owner of the place searched

Question 5

things held out to the public

Answer 5

one does not have a reasonable expectation of privacy in objects held out to the public. generally, this includes information in the hands of third parties (such as bank account records). however, one does have a reasonable expectation of privacy in one’s cell-site location information (that is, personal location information derived from cell phone usage data) which is stored in the hands of third parties

Question 6

search of persons found on searched premises

Answer 6

a warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant. neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed. Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed. of course, if a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a terry pat down for weapons.

Question 7

exceptions to warrant requirement

Answer 7

• search incident to constitutional arrest
• automobile exception
• plain view
• consent
• stop and frisk (terry stop)
• hot pursuit, exigent circumstances, evanescent evidence, and emergency aid exceptions