Searches Flashcards
What is a “Search”
Definition - when governmental conduct violates a reasonable expectation of privacy
Ohio - individual afforded protection of home if he has a reasonble and legitamate expectation of privacy in the dwelling; mere possession of the dwelling by trespass is not sufficient
Government - must be government conduct
Reasonable Expectation of Privacy - would society objectively have an expectation of privacy
- Places where we do have an expectation of privacy against government
- homes
- hotel room
- offices
- backyard of your home (curtilage)
- luggage
- Places where we do not have an expectation of privacy against gov
- public streets
- open fields (even if they’re private property with right to flyovers)
- garbage cans left out in the street (yes expectation if in garage)
- abandoned property
Warrant Requirement
General - government needs a warrant to conduct a search if there is a reasonble expectation of privacy
Requirements
- search warrant must be issued by a neutral magistrate
- must be based on probabe cause to believe that the items sought are fruits of the crime, instrumentalities, or evidence of crime and will be ofund at the listed location
- must describe the place to be searched and property to be seized with particularity
Fruits of the Crime - loot of robbery
Instrumentalities - gun used to rob
Evidence of Crime - tired tread marks of get away car
Defective Warrant - if a warrant does not meet the above requirements, the warrant is invalid and the items seized pursuant to the warrant will be XX from the prosecution
Ohio - if D tries to challenge the probable cause of a warrant, the reviewing court must give great defference to the issuing magistrate’s deterination of probable cause, and resolve any gray areas in favor of find the search warrant valid
Exceptions to Warrant Req - General + List
Seven ESCAPES from the warrant requirement
- exigent circumstances
- search incident to arrest
- consent
- automobiles
- plain view
- evidence obtained from admistrative searches
- stop and frisk
Exceptions to Warrant Req - Exigent Circum.
General - officers are entitled to secure premises (e.g., prevent people from moving things) while they obtain a warrant, but sometimes not enough
Rule - if officers are in “hot pursuit” or immediate danger, they may conduct a search without getting a warrant first
Note - if officer create the exigent circumstance, then a warrant is necessary for a serarch
DUI - generally a warrant is required for search inciden to a DUI arrest; DUI arrest is not an exigent circumstance that allows for an immediate blood alcohol concentration test unless exigent circumstances are such that it is impossible to get a warrant (e.g., late night so judge is unavailable for warrant, far from hospital)
Exceptions to Warrant Req - Search Incident to Arrest
Rule - if arrest was lawful, a search warrant is unncessary but scope of the search is limited to things within the reach of the defendant
Note - search incident arrest for a seriousd crime can include taking a DNA sample from the arrestee
Exceptions to Warrant Req - Consent
Rule - defenant can consent to a search and the officer to need not explain the subject of his right to refuse so long as D could have refused
Third Parties - the party with apparent authority can allow a search
Exception - officers cannot search over a present occupant’s ojection and use the evidence against him however if suspect was not present and occupant consented, search is valid
Ohio - if police come to home to investigate and a child answers the door, the child has the authority to consent to their entry into the home;
Child may consent to warrantless search of the home depending on the totality of the circumstances
Exceptions to Warrant Req - Automobiles
Rule - if police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle and containers inside which could contain the contraband and cannot search other areas or containers
Exceptions to Warrant Req - Plain View
Rule - if police are legally permitted on the premises, they can seize any item in “plain view” (or “plain smell”) even if that item was not named in the warrant
Exceptions to Warrant Req - Evid from Admin. Searches
Evidenced Obtained from Admininstrative Searches
Rule - police do not need search warrants to conduct administrative searches (administrative warrants and warrantless administrative searches)
Administrative Warrants - do not requires exigent circumstances; evidnece, instrumentality, fruit of a crime can be seized if seen during adminstrative search
Warrantless Adminstrative Searches - conducted for xx purposes, but if they turn up evidence of a crime it can be used for arrest and subsequent prosecution; examples:
- airplane boarding areas
- international borders
- highly regulated industries (liquor store, gun shop, etc)
- searches of students in public schools
- special needs searches (e.g., drrug testing of railroad employees after an accident)
- roadblock for drunk driving or seeking info
Exceptions to Warrant Req - Stop and Frisk
Stop and Frisk / Terry Stop - officer can stop an individual when the officer has a reasonable suspicion, based on articulable facts, to believe the suspect is or is about to engage in criminal behavior
Burden Heirarchy -
Reasonable Suspicion -> stop
Probable Cause -> arrest
Beyond a Reasonable Doubt -> conviction
Frisk - during a Terry Stop, an officer can pat-down a detainee for weapons but cannot initiate a search for evidence
if pat-down reveals objects whose shape makes their identity obvious, then officer can seize those objects
if probable cause develops during a Terry Stop then officer can then make an arrest
Community Caretaking Function
Law enforcement can conduct searches of real property as part of their “community caretaking” function if their purpose is to detect dangerous or unsafe conditions
Ohio - law enforcement may obtain a warrant to conduct a search of real property if the officer can show probable cause to believe that conditions on the property are or may become hazardous to the public
