Slides & Exam Flashcards
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fourth Amendment: Remedies
a) Civil Suit
b) Criminal Complaint
c) Admin complaint (e.g., to police department)
Dog Sniffs and Searches
No REP = No “Search”
No REP in possession of contraband since, by definition, it is illegal to possess contraband.
Dog sniff only reveals existence of contraband, thus no search.
Can dogs sniff inside of car?
A canine sniff that migrates from outside a car or other container to the interior does not constitute a violation of the 4th, so long as the canine makes entry into the suspect vehicle OF ITS OWN INITIATIVE and is neither ENCOURAGED or PLACED in by officers.
When do people have REP in garbage can?
When it is within curtilage of their home/on their property.
Only when it is out on the curb is the REP lost.
Illegal vs. Unconstitutional
State statutes and laws may be created that go above and beyond the constitution, but this does not mean they change the constitution.
Is evidence admissible in Federal Court if it was obtained by violating State Law?
Yes, so long as it wasn’t obtained in violation of the constitution or federal law.
REP in not having bags touched on a bus?
No. But if squeezed and manipulated, yes.
Probable cause is…
Articulable information and logical inferences from that information which show that:
1) It is more likely than not that a crime has occurred and that there is a fair probability that…
2) The evidence sought exists at the place named in the search warrant, OR
3) The suspect named in the arrest warrant has committed a crime
Probable cause is more than a “hunch,” “gut feeling,” or “reasonable suspicion.” But less than proof beyond a reasonable doubt.
Is reasonable suspicion sufficient for probable cause?
No.
Probable Cause for search:
Evidence shows connection between crime and the place and items searched (no need to address who specifically is present)
Probable cause for arrest:
Evidence shows connection between crime and specific person (no need to address specific place or items)
What is “Safe Harbor”
When a search is based upon a magistrate’s (rather than a police officer’s) determination of probable case, the reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,” and will sustain the judicial determination so long as “there was substantial basis for the magistrate to conclude that narcotics were probable present.”
Probable Cause for Administrative Searches?
Health inspections and minimally intrusive searches are considered less demanding of PC.
How much PC for taking blood in DUI arrest?
Since it is a more offensive type of search, it requires a “clear indication that in fact such evidence will be found.”
Probable Cause Rules of Thumb
1) PC requires the supporting facts suggest a fairly narrow range of possibilities, .e.g., descriptions fitting large numbers of people or a large segment of the community does not create PC.
2) PC allows for supporting facts with some uncertainty about whom the perpetrator of the crime is, but not uncertainty as to whether any crime has occurred.
3) PC does not allow for an arrest and search based on supporting facts as consistent with innocent activity as criminal activity.
Gates approach to Informants:
“Totality-of-circumstances” test
Totality of Circumstances Test
Gates test.
Example:
- Anonymous tip
- But highly detailed
- Mostly innocent facts and allegation of drug trafficking
- Innocent, predictive facts were corroborated
Elements of a Valid Search Warrant
- Probable Cause
- Affidavit: “Oath of Affirmation” (affidavit under oath alleging facts, not conclusions)
- Neutral magistrate requirement (Warrant issued by a neutral and detached magistrate)
- Particularity requirement (A search warrant, and not just the affidavit, must describe with REASONABLE CERTAINTY the location to be searched and the things to be seized.
Exceptions to the Particularity requirement of a valid search warrant:
- Reasonable error in the description
2. Plain view
Who is a “magistrate”
Need not be a judge or even a lawyer; must only meet 2 requirements:
- Neutral and detached
- Capable of determining whether probable cause exists for the requested arrest or search.
When can an officer arrest without a warrant?
So long as the officer has probable cause:
- For any felony
- For a misdemeanor committed in his presence
What does “reasonable ground” and “reasonable cause” mean today?
Probable cause.
Are warrantless arrests in public permissible?
Yes.
How can officers enter a suspect’s home to arrest a suspect?
If officers have grounds to believe suspect is inside a residence, then an ARREST WARRANT will support entry to arrest them.
How can officer’s enter a 3rd party home to arrest a suspect?
Absent EXIGENT circumstances or CONSENT, officer cannot legally search for the subject of an arrest warrant in the home of a third party without obtaining a SEARCH WARRANT based on showing that subject of the ARREST WARRANT is inside the third party’s home.
How far can police enter a home without a warrant and absent exigent circumstances?
Police may not cross threshold of home.
Is a warrant valid if it directs the search of all persons found within a specific place?
No – must identify individuals to be searched with more particularity
Is a warrant valid if it is missing info or has erroneous info?
Yes, so long as other known facts or reasonable inferences clarify the warrant and make it possible to identify a particular house, item, or person
