Search and Seizure Flashcards
Search and Seizure - 4 Global Issues
- Whether a search and seizure is governed by the 4th Amendment.
- Whether a search or seizure conducted with a warrant satisfies Fourth Amendment requirements
- Whether a search or seizure conducted without a warrant satisfies without a warrant satisfies 4th Amendment requirements
- The extent to which evidence obtained through a search and seizure that violates the Fourth Amendment is nonetheless admissible in court
Expressly Protected areas from unreasonable search and seizure
- Persons
- Houses (Including Curtilage - area adjacent to home to which the activity of home life extends)
- Papers
- Effects
Unprotected Items under 4th Amendment
- These are similar in that there is knowing exposure to third parties
1. Paint scrapings outside your car
2. Account records held by a bank
3. Air space: anything that can be seen while in public air space
4. Garbage left at curb for collection
5. Voice
6. Odors - especially from your car or luggage
7. Handwriting
8. Open fields
Standing for Search and Seizure
To have standing, an individual’s personal privacy rights must be implicated, not those of a third party.
Examples of protected areas:
- ownership- ALWAYS
- residence- ALWAYS
- Areas where an overnight guest goes- Always as to areas overnight guests can be expected to access
- Locked portions of child’s room- Probably expectation of privacy
- Passengers: if expectation of privacy in item seized or area searched by gov’t agent
*Business nexus not enough for commercial property
Probable Cause
Probable cause requires proof of a “fair probability” that contraband or evidence of crime will be found in the area searched.
a. Hearsay IS admissible for this purpose
b. Informant’s tip - Can be relied on even if info is anonymous AND there is corroboration to allow a magistrate to make a COMMON SENSE PRACTICAL determination that PC exists based on totality of the circumstances.
Vehicle Expectation of Privacy
A passenger’s effects are considered part of the car for purposes of automobile searches; therefore, if the search is valid, the passenger will lose the challenge.
*Passengers in cars only have an expectation of privacy in the item seized or area searched.
Key Questions for Validity of a Warrant
- Was the warrant issued by a neutral and detached magistrate?
- Is the warrant supported by PC and particularity?
- If not, did police officers rely on a defective warrant in “good faith?” (Applies to MBE only GA does not recognize good faith doctrine)
- Was the warrant properly executed by the police?
Warrant must contain? (Particularity Requirement)
Must include:
- The place to be searched, AND
- The items to be seized
*General warrants NOT ALLOWED
Officer Good Faith Exception
*GA doesn’t recognize the good faith doctrine
General Rule: “Good faith” overcomes constitutional deficits in PC and particularity, with 4 exceptions:
1. The warrant application is so egregiously lacking in PC that no reasonable officer would rely on it.
2. The warrant is so facially deficient in particularity that officer’s couldn’t presume it valid.
3. The affidavit relied upon by magistrate contains knowing or reckless falsehoods that are required for PC.
4. The magistrate who issued the warrant is bias in favor of prosecution.
Proper Execution of Search Warrant
- Compliance with the warrant’s terms and limitations
ex. If warrant “for the living room and all bedrooms for stolen ipads” Any rooms other than the living rooms and bedroom, as well as any containers to small to hold an ipad in permitted rooms would be outside scope of warrant. - “Knock and Announce” Rule
* In GA, when executing a search warrant, police may reasonably search any person to protect himself or to prevent the destruction of evidence
Knock and Announce Rule
Requires police to “knock and announce” their presence and their purpose before forcibly entering the place to be searched, unless the officer reasonably believes that doing so would be:
- futile
- dangerous, or
- would inhibit the investigation
Knock and Announce Violation
A failure to comply with the “knock and announce” rule does not require suppression of the evidence subsequently discovered.
Civil Remedies Available
2 Ways That Searches and Seizures by Gov’t Agents Can Implicate an Individual’s 4th Amendment Rights
- The agent physically intruded on a constitutionally protected area in order to obtain information,
ex. Installing GPS tracking device on car to monitor movements
or - Agent’s search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy
To Show Reasonable Expectation of Privacy Violated
Individual must show:
- An actual or subjective expectation of privacy in the area searched or items seized, and
- That the privacy expectation was one that society recognizes as reasonable
ex. A police search is presumptively unreasonable under the 4th when it uses a device that is not in the public use to explore details about a home that they could not have known about w’out the physical intrusion.
Searches That Intrude Into the Human Body
- 4th Amendment applies
- The reasonableness of searches into the body depends on weighing society’s need for the evidence against the magnitude of the intrusion on the individual
- Blood sample for DUI - Reasonable
- Surgery under general anesthetic to remove bullet - unreasonable
