Searches and Seizures

Question 1

Katz v. United States - test for determining a search under Katz

Answer 1

Reasonable expectation of privacy test

A search occurs if there is a governmental intrusion upon a person who has

(1) a subjective expectation of privacy AND
(2) that expectation of privacy is one that society is prepared to recognize as reasonable

Question 2

Oliver v. United States - Open fields

Answer 2

No reasonable expectation of privacy in open fields

Question 3

Four factor test in curtilage - United States v. Dunn

Answer 3

(1) the proximity of the area claimed to be curtilage to the home;
(2) whether the area is included within an enclosure surrounding the home
(3) the nature of the uses to which the area is put; AND
(4) the steps taken by the resident to protect the area from observation by people passing by

Factors are not to be applied mechanically. The central question is “whether the area in question is so intimately tied to the home itself that it should be placed under the home’s umbrella”

Question 4

Aerial observation of curtilage - California v. Ciraolo

Answer 4

“[W]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection”

[T]he mere fact that an individual has taken measures to restrict some views of his activities [does not] preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible”

Court noted the officers were operating within publicly navigable airspace – the Court added that any member of the general public could have glanced down and seen what the officers observed.

Question 5

Aerial observation of the curtilage at 400 ft - Florida v. Riley (White’s Plurality view and O’connor’s concurring view)

Answer 5

J. White Plurality - the helicopter was at a height not prohibited by law, any member of the public could have done this - one limitation: nothing in the record indicated flying at 400 ft was rare, the flight interfered with normal use, that intimate details were revealed, or any undue noise, wind, threat of injury

O’Connor concurrence - would ask the question whether the helicopter was at an altitude that members of the public travel with sufficient regularity that the D’s expectation of privacy from aerial observation was not one that society was prepared to recognize as reasonable

Question 6

Katz and Business and Commercial Premises

Answer 6

As a general rule, law enforcement officers may stand in the shoes of a member of a general public, entering business or commercial premises and observing in areas and in a manner consistent with the invitation given to members of the public, even though law enforcement’s purposes are investigatory without the officer’s actions constituting a search under the Fourth Amendment

Question 7

Kyllo v. United States - Thermo vision/sensory enhancing technology

Answer 7

“Obtaining by sense enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion ‘into a constitutionally protected area’ constitutes a search—at least where (as here) the technology in question is not in general public use”

“Where, as here, the Government uses a device that is not in general public use, to explore the details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Question 8

California v. Greenwood - cops digging through trash like the raccoons they truly are

Answer 8

Having deposited his garbage, in an area particularly suited for public inspection and for the express purpose of having strangers take it, Greenwood had no reasonable expectation of privacy

Question 9

United States v. Knotts - beeper tracking in the car

Answer 9

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When the defendant travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

Question 10

United States v. Karo - beeper tracking in the home

Answer 10

The government engages in a search where the government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house

A search occurs even if visual observation initially revealed that the article to which the beeper is attached entered the home if subsequent use of the beeper verifies that the article remains on the premises

Question 11

United States v. White - wiretapping

Answer 11

(subsequently adopted by later majority opinions)

Reaffirmation post-Katz of Hoffa v. United States, Lewis v. United States, and Lopez v. United States

False Friend cases – no fourth amendment safeguard for an individual’s “misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it”

Lack of Fourth Amendment protection extends to circumstances in which the false friend is an undercover agent, that undercover agent is using electronic equipment to record the conversation, or the false friend is carrying recording equipment or a device that transmits the communications to be recorded elsewhere

Question 12

Smith v. Maryland - third party doctrine and pen registers

Answer 12

A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties

When Smith used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Question 13

United States v. Miller - third party doctrine and bank documents

Answer 13

The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

This analysis is not changed by the mandate of the Bank Security Act that records of depositors’ transactions be maintained by banks. Even if the banks could be said to have been acting solely as Government agents in transcribing the necessary information and complying without protest with the requirements of the subpoenas, there would be no intrusion upon the depositors’ Fourth Amendment rights

Question 14

Bond v. U.S. - feeling passenger bags on a bus

Answer 14

If cops do anything more than what any normal other passenger might do on the bus (i.e., squeeze the bag in an “exploratory manner” looking for contraband) it violates the passenger’s reasonable expectation of privacy and is thus a search requiring a warrant under the Fourth Amendment

Question 15

dog sniffs and searches

Answer 15

A dog sniff alone is not a search - U.S. v. Place, Illinois v. Caballes

Dog sniff is not particularly intrusive, only tells whether there is contraband - this is not something society is willing to recognize as protected

Distinguishing from Kyllo (thermo vision): the dog sniff does not detect legal behavior, the thermo vision does

Question 16

Test from U.S. v. Jones determining whether there is a search

Answer 16

Physical intrusion test:

(1) a “trespass”/physical intrusion occurs
(2) the trespass/physical intrusion is upon an area enumerated in the Fourth Amendment (“persons, houses, papers, or effects”), AND
(3) it occurs with the intent “to find something or to obtain information

Question 17

Black letter law on whether a search occurs (both tests)

Answer 17

A search occurs if either

The Katz reasonable expectation of privacy test is satisfied - If there is a government intrusion upon a person who has (1) a subjective expectation of privacy AND (2) that expectation of privacy is one that society is prepared to recognize as reasonable

OR the Jones trespassory/physical intrusion search test is satisfied

(1) a “trespass”/physical intrusion occurs
(2) the trespass/physical intrusion is upon an area enumerated in the Fourth Amendment (“persons, houses, papers, or effects”), AND
(3) it occurs with the intent “to find something or to obtain information

Question 18

When a traffic stop becomes an unreasonable seizure

Answer 18

The tolerable duration of police inquiries in the traffic stop context is determined by the seizure’s mission

May last no longer than is necessary to effectuate the purpose – ends when tasks tied to violation are or reasonably should be over

Question 19

The trespass/physical intrusion prong of the Jones test - notes about consent and social norms

Answer 19

The government trespasses or engages in a physical intrusion that is unlicensed

A physical intrusion can be licensed either through permission or implicitly via being implied from background social norms (“the habits of the country”)

Even where social norms would allow for some degree of physical intrusion, government cannot exceed the scope of the authorization (ex: walking to a person’s front door is licensed by social custom, bringing your drug detecting dog with you is not)

Question 20

Extent of what officers can do on the front porch of a home (without a warrant)

Answer 20

The same as anyone else (ex. knock on the door)

Bringing a drug-sniffing dog is too much; this is more than any other visitor would do

Question 21

Period of time in which obtaining Cell Site Location Data without a warrant is problematic

Answer 21

“We need not decide whether there is a limited period for which the Government may obtain an individual’s historical cell-site location information (“CSLI”) free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.”

Question 22

Why do we care about probable cause? No, really. Why do we?

Answer 22

(1) law enforcement needs probable cause to get a search warrant (if one is needed),
(2) law enforcement needs probable cause to obtain an arrest warrant,
(3) law enforcement needs probable cause to arrest in the absence of a warrant, AND
(4) there are important exceptions to the warrant requirement for which probable cause is required for the police to search and/or seize

Question 23

Probable Cause - Gates Standard

Answer 23

Question Posed – For issuance of a search warrant, the determination of probable cause hinges upon whether under the totality of circumstances, there is a fair probability that contraband or evidence of a crime will be found in the place to be searched.

In making a determination of probable cause the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of acts.

Question 24

Comparing standards of proof (ranking them from most strict to least strict)

Answer 24

Most strict: Beyond a reasonable Doubt

Then, Clear and Convincing Evidence

Then, Preponderance of the Evidence

Then, Probable Cause,

Least strict: Reasonable Suspicion

Question 25

Percentage requirement sufficient to reach probable cause

Answer 25

"The probable-cause standard is incapable of precise definition or quantification into percentages" - Maryland v. Pringle In that case, 1/3 chance of the drugs belonging to each suspect was good enough, but the Court declined to attach a set percentage for probable cause.

Question 26

Challenging the probable cause of alerts from drug dogs

Answer 26

In short, a probable-cause hearing focusing on a dog's alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State's case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime

Question 27

Probable cause and subjectivity

Answer 27

An officer’s subjective intentions play no role in ordinary probable cause determinations The question of whether under the totality of circumstances there is a fair probability that contraband or evidence of a crime will be found in the place to be searched is answered based on objective rather than subjective considerations

Question 28

Five things needed for a valid warrant

Answer 28

For a warrant to be valid: (1) there must be probable cause to issue the warrant, (2) the warrant must be issued by a neutral and detached magistrate (3) the warrant must be supported by an oath or affirmation (4) the warrant must particularly describe the place to be searched, AND (5) the warrant must particularly describe the person or things to be seized

Question 29

13 (!!!) general principles with regard to the particularity requirement of the warrant clause GOOD FUCKIN LUCK MEMORIZING THAT LMAO just hit 1 and move on with your life you know it's happening JUST DO IT coward

Answer 29

(1) GOOD TRY GUYS A greater degree of ambiguity will be tolerated when the police have done the best that could be expected under the circumstances, by acquiring all the descriptive facts which reasonable investigation of this type of crime could be expected to uncover and by ensuring that all of those facts were included in the warrant. (2) VAGUE THINGS ARE HARD A more general type of description will be sufficient when the nature of the objects to be seized are such that they could not be expected to have more specific characteristics. (3) VAGUE, ILLEGAL THINGS ARE HARD A less precise description is required of property which is, because of its particular character, contraband. (4) TMI Failure to provide all of the available descriptive facts is not a basis for questioning the adequacy of the description when the omitted facts could not have been expected to be of assistance to the executing officer. (5) GLITCH IN PIC An error in the statement of certain descriptive facts is not a basis for questioning the adequacy of the description if the executing officer was nonetheless able to determine, from the other facts provided, that the object seized was that intended by the description. (6) DR.'S ORDERS Greater care in description is ordinarily called for when the type of property sought is generally in lawful use in substantial quantities. (7) TICKETS 2 GUN SHOW A more particular description than otherwise might be necessary is required when other objects of the same general classification are likely to be found at the particular place to be searched. (8) FOX DIDN'T DO IT The greatest care in description is required when the consequences of a seizure of innocent articles by mistake is most substantial, as when the objects to be seized are books or films or the papers of a newsgathering organization. (9) SAVE BB, LEAVE BATHWATER The mere fact that some items were admittedly improperly seized in execution of the warrant “does not mean that the warrant was not sufficiently particular.” (10) WHAT'S A CRIME The Fourth Amendment's particularity requirement does not “require particularity with respect to the criminal activity suspected.” (11) FINAL COUNTDOWN Some leeway will be tolerated where it appears additional time could have resulted in a more particularized description, where there was “some urgency to conduct a search … before the defendant had the opportunity to remove or destroy the evidence.” (12) CONTXT CLUES A description which alone might be insufficient may become particular enough given the context within which it is used. (13) NOTHING PROBABLE CAN STAY A search warrant that does contain a sufficient description of the items to be seized, even in the probable cause sense, can be “undone” by later events occurring either prior to or subsequent to the commencement of the warrant's execution.

Question 30

Anticipatory search warrants

Answer 30

“for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place,’ but also that there is probable cause to believe the triggering condition will occur.” Officer’s affidavit supporting the anticipatory search warrant must provide sufficient information to support both requirements

Question 31

reasoning behind the warrant requirement - not really a thing we need to know, but hey, fun facts amirite

Answer 31

The warrant requirement was in response to general warrants from the British crown – they would issue a warrant because of tax reasons but actually search for seditious literature in the home

Question 32

knocking and announcing and the 4th Amendment - where it fits in the 4th Amendment analysis and three examples of exceptions

Answer 32

Knocking and announcing is part of the reasonableness inquiry under the Fourth Amendment. In some circumstances an officer’s unannounced entry into a home might constitute an unreasonable search/seizure under the Fourth Amendment. Although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, circumstances may also establish the reasonableness of an unannounced entry. Examples: (1) under circumstances presenting a threat of physical violence, (2) where a prisoner escapes from an officer and retreats to his dwelling, & (3) where police officers have reason to believe that evidence would likely be destroyed if advance notice were given

Question 33

Reasonableness of a no-knock entry

Answer 33

“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion [(less than probable cause required)] that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” “This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.”

Question 34

police ability to search/detain people who are present when a warrant is executed

Answer 34

As a general rule, the police cannot search persons who are present when a warrant is being executed just by virtue of the person being there – Ybarra v. Illinois The police, however, may detain persons who are present when a warrant is being executed – Michigan v. Summers

Question 35

Use of force with detention of those who are present when a warrant is executed

Answer 35

An officer’s authority pursuant to Summers to detain incident to a search is categorical; it does not depend on the quantum of proof justifying a detention (in other words neither probable cause nor even reasonable suspicion is required) Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention

Question 36

location of those detained when a warrant is executed

Answer 36

The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched Once an individual has left the immediate vicinity of a premises to be searched, detentions must be justified by some other rationale Immediate Vicinity - In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location and other relevant factors

Question 37

Effect of an officer's mistake in executing a warrant

Answer 37

The Court has recognized the need to allow some latitude for honest mistakes that are made by officers in the process of obtaining and executing search warrants The constitutionality of these mistakes is affected whether they are objectively understandable and reasonable

Question 38

Mistake of law with seizures

Answer 38

To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community's protection.” We have recognized that searches and seizures based on mistakes of fact can be reasonable. . . . But . . . mistakes of law [can be reasonable] too. . . . The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved.

Question 39

Hot pursuit exception to the warrant requirement

Answer 39

For this exception to the warrant requirement to be applicable, law enforcement officers must have probable cause to believe that a crime has been committed and that the suspect is on the premises, there must have been some form of a chase (“immediate and continuous pursuit”) of the suspect, and while a short time lapse before entry will not render the warrantless entry unconstitutional, a significant delay will

Question 40

general rule for police entering a home without a search warrant for serious offenses

Answer 40

Irrespective of the seriousness of the offense, in the absence of exigent circumstances law enforcement cannot enter a home to effectuate an arrest without a warrant

Question 41

Emergency aid exception to the warrant requirement

Answer 41

Where an officer has an objectively reasonable belief that an occupant is seriously injured or imminently threatened with such injury (“in need of immediate assistance”), warrantless entry is permissible to render emergency assistance to the injured or to protect an occupant from injury The officer’s subjective intentions in entering without a warrant are irrelevant. The officer could have entered trying to discover evidence, not caring about the safety of the individuals inside or even believing that someone was actually seriously injured or in danger of such injury, instead simply hoping to see evidence in plain view, and the entry would still be constitutional

Question 42

Destruction of evidence exception to warrant requirement

Answer 42

An objectively reasonable belief that the destruction of evidence is imminent provides officers with a basis for conducting an otherwise impermissible warrantless search to preserve the evidence Officers’ subjective intentions in conducting a warrantless entry are irrelevant and the danger of destruction of evidence having arisen in response to law enforcement actions, even where such a reaction was reasonably foreseeable, will not invalidate a warranteless entry Exception: if the exigency arises in response to an actual or threatened fourth amendment violation [difference between police announcing that they are at the door (permissible) and police saying they are breaking the door down and coming in (impermissible)]

Question 43

exigency and drawing blood with DUI arrest

Answer 43

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.

Question 44

Officer safety/safety of others exception to the warrant requirement

Answer 44

For the exception to the warrant requirement for safeguarding against risks to the safety of the officers or others to be applicable, the officers must have an objectively reasonable basis for concluding that there is an immediate need to act to protect themselves and/or others from serious harm

Question 45

Community Caretaker Function exception to the warrant requirement

Answer 45

The government must show that (1) the officer possessed specific and articulable facts which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and (2) the officer's behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need. -- in Tennessee, officer’s subjective intentions are irrelevant to community caretaker analysis (however – “courts must meticulously consider the facts and carefully apply the exception in a manner that mitigates the risk of abuse”)

Question 46

Plain view exception to the warrant requirement

Answer 46

(1) the officer was where he or she was legally entitled to be when seeing the item in plain view (2) the items incriminating nature must be “immediately apparent,” AND (3) the officer has a lawful right to access the object itself

Question 47

automobile exception to the warrant requirement

Answer 47

Law enforcement may conduct a warrantless search of an automobile or other moveable vehicles (boat, plane, etc.) if officers have probable cause to search the vehicle

Question 48

containers in vehicles exception to the warrant requirement

Answer 48

Law enforcement can engage in warrantless searches of containers in vehicles if the officers have probable cause to search either the container or the vehicle If the container is not in the vehicle, then officers cannot engage in a warrantless search of the container even if they have probable cause to search the container but can seize the container while they attempt to obtain a warrant if there are exigent circumstances

Question 49

police ability to direct driver/passengers of a car to get out of the vehicle during a stop

Answer 49

When the police lawfully stop a vehicle, they may order the driver [Pennsylvania v. Mimms (1977)] and passengers out of the vehicle [Maryland v. Wilson (1997)] [this is automatic – not even reasonable suspicion is required] Additionally, the police may conduct a pat down search for weapons on persons pulled over in traffic stop if the police have reasonable suspicion that the person subjected to the frisk is armed and dangerous [Arizona v. Johnson (2009)]

Question 50

Search incident to arrest exception to the warrant requirement

Answer 50

Officers may conduct a warrantless search of the arrestee as part of a valid search incident to arrest Officers may also conduct a warrantless search of the arestee’s grab area – the area from within which the arrestee might have obtained either a weapon or evidence – as part of a valid search incident to arrest

Question 51

search incident to arrest involving automobiles

Answer 51

“a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search or (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest”

Question 52

automobile exception in relation to homes

Answer 52

The automobile exception does not permit the government to enter a home or the curtilage to search a vehicle therein without a warrant

Question 53

Cell phone contents with search incident to arrest

Answer 53

Law enforcement officers cannot search the content of an arrestee’s cell phone as part of a search incident to arrest

Question 54

breath tests and blood tests with searches incident to arrest

Answer 54

A breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving

Question 55

vehicle inventory searches

Answer 55

When police have properly taken a vehicle into their custody, they may conduct an inventory search pursuant to an established standard inventory policy even without a warrant or probable cause (Note: inventory searches have been invalidated where law enforcement does not maintain the inventory sheets and/or provide a safe place for storage of valuables or where the inventory search is discretionary rather than standard)

Question 56

searching of containers with searches incident to arrest

Answer 56

Police may search any article or containers on an arrestee as part of a routine established inventory procedure that is incident to incarcerating a lawfully arrested person even without a warrant or probable cause to support the search

Question 57

rule with protective sweeps

Answer 57

Lacking probable cause or reasonable suspicion to believe that any danger is posed, law enforcement may in effectuating an arrest, nevertheless, as part of a protective sweep on private premises, look in closets and other spaces immediately adjoining the place of arrest from which an attack could occur To extend the protective sweep further, law enforcement must have reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene Protective sweeps are not full searches of the premises and may only extend to a cursory inspection of those spaces where a person may be found and the sweep can last no longer than is necessary to dispel the reasonable suspicion of danger and no longer than it takes to complete the arrest and depart from the premise

Question 58

consent searches of those not in custody

Answer 58

When the subject of a search is not in custody and the government attempts to justify a search on the basis of his or her consent, the government bears the burden of proof to demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion. Voluntariness is a question of fact to be determined from the totality of the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

Question 59

Consent of another person in the home to the search

Answer 59

The Fourth Amendment recognizes a valid search of premises when a police officer obtains the voluntary consent of an occupant who shares, or is reasonably believed by the law enforcement officer to share, authority over the area in common with a co-occupant. Exception: a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him or her. Exception to the Exception: where the people living together fall within some recognized hierarchy, like a parent and a minor child at private residence or barracks housing military personnel of different grades, the objection of a physically present co-occupant who is lower in the hierarchy will not render the search unreasonable.

Question 60

administrative searches THIS ONE IS REAL FUCKIN LONG LMAOOOOOOO

Answer 60

In the absence of a compelling urgency to inspect at a particular time or on particular day, a warrant should be obtained to conduct an administrative search of a private residence A warrant should be issued if a valid public interest justifies the intrusion contemplated – such justification does not have to depend upon specific conditions of the property to be inspected Warrantless searches of closely regulated businesses (exs: liquor sales, firearms dealing, mining, or running an automobile junkyard) are permitted even in the absence of exigent circumstances where (1) there is a substantial government interest in the administrative regulatory scheme, (2) the warrantless entry is necessary to further the regulatory scheme, AND (3) the ordinance or statute that permits the warrantless inspections must, by its terms, provide an adequate substitute for the warrant, such as rules that limit the discretion of the inspectors, regarding the time, place, and scope of the search, and providing notice to the property owner that they are subject to such searches If the business is not closely regulated, then there must be an opportunity for preclearance review of the reasonableness of the governmental inspection of the business premises or its papers (note this does not mean that the government could not obtain an ex parte warrant in support of a surprise inspection or that papers could not be seized while a determination of whether searching the papers would be reasonable is being made by the magistrate)

Question 61

Border crossings

Answer 61

Officers may conduct searches without a warrant, probable cause, or even reasonable suspicion of persons and property that crosses an international border into the United States either at the border itself or at fixed location near the border Mail crossing international borders into the United States is subject to search where there is “reasonable cause to suspect” [a requirement imposed by statute] Intrusive searches of a person such as body cavity searches or an extended detention (note 1 to 2 hours is not considered extended – Flores-Montano) require reasonable suspicion

Question 62

checkpoints - approximately 48 critical paragraphs you should memorize in one day

Answer 62

Law enforcement may utilize checkpoints/roadblocks along roadways provided that they do so pursuant to a neutral plan and that the primary purpose of the roadblock is related to ensuring roadway safety or policing the border but not where the checkpoint/roadblock is being used to detect evidence of ordinary criminal wrongdoing [Courts assess the actual intent of the plan and do not simply accept that the purpose asserted by the government is the actual purpose] Checkpoints/roadblocks can also be utilized where the stop is a reasonable attempt by law enforcement to enlist the public’s assistance in seeking information about a crime committed by others rather than based on seeking to determine whether the occupants of the vehicle that has been seized as part of the stop was involved in criminal activity Checkpoints/roadblocks can also be utilized where there are exigencies that warrant the use of a checkpoint such as to thwart an imminent terrorist attack or to catch a dangerous felon who is likely fleeing by a particular route Detention of particular motorists for more extensive seizures (ex: application of a field sobriety test) than the initial seizure of the checkpoint will require satisfaction of an individualized suspicion standard

Question 63

searches of government employees

Answer 63

When conducted for a noninvestigatory, work-related purpose or for the investigation of work-related misconduct, a warrantless search of government employee (exs: searching work office, texts on a government issued pager, etc.) is reasonable if it is justified at its inception and the if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search

Question 64

searches in schools

Answer 64

Schools may conduct warrantless searches of students and their possessions so long as the scope of the search is reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction (infraction not limited to crimes can be a violation of school rules)

Question 65

drug testing

Answer 65

The government may require automatice drug testing in the absence of a warrant, probable cause, or even reasonable suspicion for employees where there are special needs for such testing and the industry is highly regulated for the purposes of ensuring public safety or where the employees are directly involved in drug interdiction The government may require minor students in public schools who participate in extracurricular activities (athletic or non-athletic) to submit to random drug testing so long as the drug testing is conducted in a manner that respects the privacy of the student in terms of how the test is administered and how knowledge of the results are controlled, the results are not shared with law enforcement or conducted for law enforcement purposes, and an option to decline to submit to such a test exists with the consequences of failure to do so being less than expulsion though the consequences can include exclusion from participation in the extracurricular activity A patient has a reasonable expectation of privacy that the results of medical testing will not be shared with nonmedical personnel -- suspicionless drug testing of patients conducted for law enforcement purposes and which is entangled with law enforcement is impermissible

Question 66

Jails and prisons

Answer 66

Law enforcement may conduct strip searches and close physical inspection of persons who are being admitted into jail or prison in the absence of any individualized suspicion Reserved Question: The Court did not determine whether it is always reasonable to conduct a strip search and close physical inspection of arrestees prior to a judicial officer considering their detention and where the person could be held in facilities apart from the general population

Question 67

Searches of persons on probation or parole

Answer 67

Probation = A court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the person to jail or prison Where the government provides that a condition of probation is being subjected to searches in the absence of a warrant or probable cause, the government can conduct warrantless searches of the probationer and her property based upon reasonable suspicion Parole = The conditional release of a prisoner from imprisonment before the full sentence has been served. Where the government provides that a condition of parole is being subjected to searches in the absence of a warrant, probable cause, or reasonable suspicion, the government can conduct suspicionless searches of parolees

Question 68

DNA testing at arrest

Answer 68

When officers make an arrest supported by probable cause for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA (analysis related to identification not assessing traits) is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment

Question 69

Final list of Katz exceptions - remember when I said this was something that shouldn't be on a flashcard PLOT TWIST, THERE ARE 21 OF THEM, GOOD LUCK

Answer 69

(1) Hot pursuit (2) Emergency Aid (3) Prevention of Destruction Evidence (4) Protecting the Safety of Officers and Others (5) Community Caretaker Function (6) Plain View (7) Automobile Exception (8) Searches Incident to Arrest (9) Searches Incident to Arrest Involving Automobiles (10) Inventory Searches (11) Protective Sweeps (12) Consent (13) Administrative Searches (14) Border Crossings (15) Checkpoints (16) Government Employees (17) Schools (18) Drug Testing (19) Jails and Prisons (20) Searches of Persons on Probation or Parole (21) DNA testing of arrestees

Question 70

arrests and warrants - when you need a warrant and shit

Answer 70

Arrests must be based upon probable cause to arrest To have probable cause to arrest, there must be probable cause to believe that a crime has been committed and that the arrestee committed it Without a warrant, police may, if they have probable cause, arrest persons in public places (Watson) but cannot arrest people in their homes (Payton) without a warrant unless an exception to the warrant requirement is applicable

Question 71

extension of home privacy expectation

Answer 71

The expectation of privacy afforded an individual in her home, for purposes of a warrantless arrest, has been extended to other areas, such as hotel rooms and offices not open to the general public—if the business is not generally accessible to the public, or the person is located in an area of the business that is not open to the public, then a warrant would be required

Question 72

seizures - when does a seizure occur, examples of factors suggesting a seizure

Answer 72

Not all contact between law enforcement and citizens constitutes a seizure A person is seized only when, by means of physical force or show of authority her freedom of movement is restrained Seizure of a person occurs only if, under the totality of the circumstances, a reasonable person would have believed that she was not free to leave Examples of factors suggesting a seizure: (1) presence of several officers, (2) Display of a weapon by an officer (3) Physical touching of the person, (4) The use of language or tone indicating that compliance might be required, (5) blocking/impeding of the citizen’s path, (6) an officer holding onto a person’s property (luggage, purse, etc.) or identification (driver’s license, passport) A person has not been seized if he or she fails to yield or submit to the officer’s show of authority (Hodari D.)

Question 73

crimes in the presence of an officer - can that dude arrest you or what

Answer 73

If an officer has probable cause to believe that an individual has committed an offense in her presence, even a minor offense for which imprisonment is not available as a sentence, she may without violating the Fourth Amendment arrest the offender

Question 74

Terry Stops - what is it, why is it, how is it, who is it, where is it, when is it. jk just that first question, plus a few bonus paragraphs LET'S GOOOOO

Answer 74

Based upon reasonable suspicion of criminal activity, a law enforcement officer may make a brief investigatory stop/seizure of a person An investigatory detention, however, must be temporary and last no longer than reasonably necessary to effectuate the purpose of the detention A valid Terry stop does not automatically give the officer permission to frisk/pat down the person Instead, law enforcement may only do so where the officer has reasonable suspicion that the person is armed and dangerous

Question 75

Terry stop v. de facto arrest

Answer 75

The line between a Terry stop and a de facto arrest can be hazy Both the duration and nature of the seizure impact whether a Terry stop has occurred or a de facto arrest Burden on the government to show that the seizure is a stop and not an arrest

Question 76

scope of an officer's actions during a Terry stop

Answer 76

An officer’s actions in a Terry stop must be reasonably related in scope to the circumstances which justified the intervention in the first place Questions concerning a suspect’s identity are a routine and accepted part of Terry stops

Question 77

assessing reasonable suspicion

Answer 77

When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Although an officer’s reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard Accordingly, for reasonable suspicion there must be more than a mere hunch; law enforcement needs a particularized and objective basis, riging to the level of reasonable suspicion, for suspecting criminal activity The basis of reasonable suspicion need not rule out the possibility of innocent conduct or an innocent explanation

Question 78

anonymous tips and reasonable suspicion

Answer 78

Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the totality of the circumstances—the whole picture, that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.