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Criminal Investigations > The Fourth Amendment > Flashcards

The Fourth Amendment Flashcards

1
Q

What is the history of the Fourth Amendment?

A

The Fourth Amendment exists in response to general writs of assistance warrants used against the Colonials.

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2
Q

What does the Fourth Amendment say?

A

The Fourth Amendment says the right of the people 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.

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3
Q

What is the first step of a Fourth Amendment Analysis?

A

The first step of a Fourth Amendment Analysis is:

(1) Was there Government action?

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4
Q

What is the second step of a Fourth Amendment Analysis?

A

The second step of a Fourth Amendment Analysis is:

(2) Was there a “seizure” or search by the Government?

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5
Q

What is the third step of a Fourth Amendment Analysis?

A

The third step of a Fourth Amendment Analysis is:

(3) If Fourth Amendment protection applies, was it satisfied?

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6
Q

What is the fourth step of a Fourth Amendment Analysis?

A

The fourth step of a Fourth Amendment Analysis is:

(4) If it applies, but is not satisfied, is there a remedy?

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7
Q

What is the rule from Burdeau v. McDowell?

A

The rule from Burdeau v. McDowell is that Fourth Amendment protection extends only to actions undertaken by government officials or those acting at their direction.

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8
Q

Can a private party be an agent or instrument of the Government?

A

Yes.

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9
Q

How can a private party be an agent or instrument of the Government?

A

(1) If the Government had knowledge of and acquiesced in the intrusive conduct;

(2) if the citizen intended to assist law enforcement or instead acted to further his own purposes; and

(3) if the citizen acted at the Government’s request.

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10
Q

What is the rule from United States v. Mendenhall?

A

The rule from United States v. Mendenhall is that a seizure of a person, within the meaning of the Fourth Amendment, occurs when the police’s conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is not free to ignore the police presence and leave at his will.

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11
Q

What are three factors that can constitute seizure?

A

(1) Presence of handcuffs or weapons

(2) Use of forceful language

(3) Physical contact or restraint

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12
Q

Can a seizure occur if the person flees from the seizure?

A

No, in order for a seizure to occur, a person must submit to the show of authority (actually or subjectively).

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13
Q

What is the rule from Olmstead v. United States?

A

The Fourth Amendment protects “persons, houses, papers, and effects.”

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14
Q

What is the rule from Katz v. United States?

A

There is a two part test for Reasonable Expectation of Privacy:

  1. An individual has exhibited an actual (subjective) expectation of privacy; and
  2. The expectation is one that society is prepared to recognize as reasonable.
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15
Q

What is the first thing that a person has a reasonable expectation of privacy regarding?

A

The first thing that a person has a reasonable expectation of privacy regarding is:

1) Their home.

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16
Q

What is the second thing that a person has a reasonable expectation of privacy regarding?

A

The second thing that a person has a reasonable expectation of privacy regarding is:

2) Their body/person.

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17
Q

What is the third thing that a person has a reasonable expectation of privacy regarding?

A

The third that a person has a reasonable expectation of privacy regarding is:

3) Their communications.

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18
Q

Do people have a reasonable expectation of privacy in their house?

A

In most instances, the police require a search warrant to enter the house founded on probable cause unless an exception exists.

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19
Q

Do people have a reasonable expectation of privacy to the curtilage of their home?

A

It depends.

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20
Q

Do people have a reasonable expectation of privacy to the open fields of their home?

A

No, the police do not require probable cause or a warrant to enter the open fields of a home.

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21
Q

What is the rule from Florida v. Jardines?

A

The rule from Florida v. Jardines is that the Government’s use of trained police dogs to investigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment.

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22
Q

What is the rule from United States v. Dunn?

A

The rule from United States v. Dunn is that curtilage is the site of the “intimate activity” associated with the “sanctity of a man [or a woman’s] home and the privacies of life” and therefore is part of the home itself.

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23
Q

How do you identify Curtilage using the Dunn Test?

A

1) Distance - Proximity of home to area claimed to be curtilage

2) Enclosure - Area within enclosure of surrounding home

3) Function - Nature of the uses to which the area is put

4) Protection - Steps taken by resident to protect the area from observation by people

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24
Q

What is the first place or thing where you have no reasonable expectation of privacy?

A

The first place or thing where you have no reasonable expectation of privacy is:

1) Open Fields

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25
Q

What is the second place or thing where you have no reasonable expectation of privacy?

A

The second place or thing where you have no reasonable expectation of privacy is:

2) Held Out to the Public

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26
Q

What is the rule from Hester v. United States?

A

The rule from Hester v. United States is that governmental intrusion and information collection upon open fields is not protected under the Fourth Amendments, as it is not considered as reasonable or legitimate, even if there are fences or “no trespassing” signs around the field.

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27
Q

Are flyovers a violation of the Fourth Amendment?

A

No, observations made with the naked eye are not restricted by the Fourth Amendment.

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28
Q

Is there a reasonable expectation of privacy regarding discarded trash?

A

No, not federally, but it may vary by state.

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29
Q

What is the rule from California v. Greenwood?

A

The rule from California v. Greenwood is that there is no Fourth Amendment protection as plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public with the intent of conveying to a third party: the trash collector.

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30
Q

What is the rule from Oregon v. Lien?

A

The rule from Oregon v. Lien is that there is an expectation of privacy for garbage left readily accessible.*

*This does not apply to federal law enforcement.

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31
Q

What is the rule from Florida v. Harris?

A

The first rule from Florida v. Harris is that the use of drug-sniffing dogs during a car search is legally permissible when there is reasonable suspicion of illegal activity.

The second rule from Florida v. Harris is that a dog’s certification and continued training are adequate indication of his reliability, and thus is sufficient to presume the dog’s alert provides probable cause to search, using the “totality-of-the-circumstances” test.

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32
Q

What is the general rule from Rakas v. Illinois?

A

The rule from Rakas v. Illinois is that a person may only complain about an evidentiary search or seizure if it violates their own reasonable expectation of privacy.

33
Q

What is the rule from United States v. Salvucci?

A

The rule from United States v. Salvucci is that the discovery of stolen checks from an illegal search of apartment of the mother of the defendant did not entitle the defendant to sue due to lacking a reasonable expectation of privacy.

34
Q

What is the rule from Rawlings v. Kennedy?

A

The rule from Rawlings v. Kentucky is that the defendant has no standing to sue for an illegal search of his friend’s purse that resulted in the discovery of drugs that he admits were his.

35
Q

What is the specific rule from Rakas v. Illinois?

A

The rule from Rakas v. Illinois is that passengers in an automobile in which illegal drugs are found do not have standing to sue for an illegal search of his friend’s purse.

36
Q

What is the rule from United States v. Padilla?

A

The rule from United States v. Padilla is that co-conspirators do not have standing to sue for an illegal search of a fellow co-conspirator’s residence that reveals stolen items because they do not have a reasonable expectation of privacy.

37
Q

What is the Third Party Doctrine?

A

The legal principle that people who voluntarily give information to third parties–such as banks, phone companies, internet service providers (ISPs), and e-mail serves–have “no reasonable expectation of privacy.”

38
Q

What are some things covered by the Third Party Doctrine?

A
  1. Checks and deposit slips given to the bank (United States v. Miller).
  2. Phone numbers you dial (Smith v. Maryland)
  3. Email Records (United States v. Forrester)
39
Q

What is the rule from United States v. Jones?

A

The physical attachment of a tracking device with intent to obtain information about someone’s movements amounts to a Fourth Amendment search.

40
Q

What is Mosaic Theory?

A

Mosaic theory is the legal principle that we maintain the expectation of privacy in certain quantities of information even if we do not have such expectations in the constituent parts.

41
Q

What is the rule from Carpenter v. United States?

A

Accessing historical cell site records containing physical locations of cellphones requires a search warrant.

42
Q

What is the rule from Berger v. New York?

A

Conversations taking place over electronic devices are protected by the Fourth Amendment and thus wiretaps require a search warrant.

43
Q

What is required before a wiretap can be used?

A
  1. Probable cause for certain crimes enumerated in 18 USC § 2516(1).
  2. Showing of necessity.
  3. Department of Justice Office of Enforcement Operations review.
  4. Timing requirements (6mo probable cause, toll hit within 14 days).
  5. Deputy Assistant Attorney General approval.
44
Q

What are the requirements for a warrant to be valid?

A
  1. Issued by an impartial judge.
  2. Based on probable cause established from the facts submitted to the judge by the government under oath.
  3. Particularly describe the place to be searched and the items to be seized.
45
Q

What is an arrest warrant and what is required for one?

A

An arrest warrant is issued by a judge or magistrate and must be supported by a signed and sworn affidavit showing probable cause that a specific crime has been committed, and that the person(s) named in the warrant committed said crime.

46
Q

What is a search warrant and what is required for one?

A

A search warrant is a warrant to search a specific premise for evidence of a specific crime. The warrant is issued by the judge if he or she finds probable cause to believe such evidence exists based on information presented by police to the judge in the form of a signed and sworn affidavit.

47
Q

What is probable cause?

A

The facts and circumstances within the police officer’s knowledge, and of which they had reasonable trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed based on a totality of the circumstances.

48
Q

What is the rule from Illinois v. Gates?

A

Probable cause is determined based on the totality of the circumstances.

49
Q

What is the standard for particularity?

A

“As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”

50
Q

What is an anticipatory search warrant?

A

Anticipatory or prospective search warrants allow the officer to seek permission in advance based on “probable cause” that evidence will be found at the location at the time the warrant is actually executed.

51
Q

What is a sneak and peek warrant?

A

A sneak and peek warrant AKA a delayed notice warrant or covert entry search warrant is a search warrant authorizing the law enforcement officers executing it to effect physical entry into private premises without the owner’s or the occupant’s permission or knowledge and to clandestinely search the premises.

This usually involves a stealthy B&E.

52
Q

What are four common issues that search warrants face?

A
  1. Conclusory Allegations: Recital of underlying facts or circumstances required (United States v. Ventresca) (e.g., the drugs are there because I know he’s a drug dealer).
  2. Staleness: Facts must indicate evidence exists in the location now (e.g., trying to use info from a year and a half ago to get a warrant; rule of thumb is no longer than 6mo).
  3. Reliance on CIs: Based on totality of the circumstances (Illinois v. Gates) (e.g., relying solely on a CI instead of corroborating a CI’s statement).
  4. False Statements: If the allegedly false statement is necessary to the finding of probable cause, a hearing must be held at the defendant’s request (Franks v. Delaware) (e.g., the search warrant was predicated on false information).
53
Q

Are officers executing a warrant generally required to announce themselves and their purpose?

A

Yes, officers executing a warrant generally must announce themselves and their purpose before intruding.

54
Q

What is the Knock and Announce Test?

A

The test is whether police have “a reasonable suspicion 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.” (Richards v. Wisconsin).

55
Q

Can officers detain an individual present at the location where a warrant is being executed without providing a reason?

A

The Summers rule allows officers to detain individuals at premises where a warrant is being executed and do not need probable cause or reasonable suspicion (Michigan v. Summers).

56
Q

Can officers detain somebody who had just left the the area?

A

The Summers rule is limited to the area within which an occupant poses a real threat meaning that law enforcement can’t detain someone who left the premises just before [law enforcement] entered the area (Baily v. United States).

57
Q

What is the rule from United States v. Watson?

A

A warrantless arrest is permitted if there is probable cause to believe the person has committed a felony.

58
Q

What is the rule from Payton v. New York?

A

Police may not enter a person’s home to make a warrantless arrest unless there are exigent circumstances.

59
Q

What is the first exception to the 4th Amendment Search Warrant Requirement?

A

Consent is the first exception to the 4th Amendment Search Warrant Requirement.

60
Q

What is the rule from Schneckloth v. Bustamonte?

A

Whether consent has been freely given or has been coerced is based on the totality of the circumstances.

61
Q

Can police get consent to perform a search an automobile without reasonable suspicion or probable cause?

A

Federally, yes.

In Oregon, no.

62
Q

What is the first limit on consent?

A

Consent from Third Parties

The searching officer must have a reasonable belief that the third party had common authority and could consent to the search.

63
Q

What is the second limit on consent?

A

Scope

Any limitation stated in the search warrant or the consent to search form must be adhered to by the police.

64
Q

What is the third limit on consent?

A

Revocation

If consent is unequivocally revoked, the officer or officers performing the search must immediately stop.

65
Q

What is the rule from Chimel v. California?

A

If someone is lawfully arrested, the police may search their person and any area surrounding the person that is within reach (within their “wingspan”).

This is called search incident to arrest.

66
Q

What is the first limitation on search incident to arrest?

A

Scope

The search must be limited to the body of the person under arrest and the area within their control.

67
Q

What is the second limitation on Search Incident to Arrest?

A

Protective Sweep

A limited search when executing a warrant to ensure their own safety, and that of those on the scene, by searching in the vicinity of the arrest or location to be searched (Maryland v. Buie).

68
Q

What is the third limitation on Search Incident to Arrest?

A

Automobile

Officers can only search automobiles following arrest if the person arrested could have accessed his car at the time of the search (Arizona v. Gant).

69
Q

What is the fourth limitation Search Incident to Arrest?

A

Cell Phone

Police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested (Riley v. California)

70
Q

What is Plain View Warrantless Seizure?

A

Police can seize an item without a search warrant under two conditions:

-Legally Situated: The police officer is lawfully positioned: he or she “has a right to be where he or she is situated.”

-Probable Cause: The police officer has probable cause to believe that the object is evidence of criminal activity. The probable cause must be immediately apparent upon observing the item (Horton v. California).

71
Q

What are the Exceptions to the 4th Amendment Search Requirement?

A

1) Consent

2) Search Incident to Arrest

3) Plain View

4) Automobile Exception

5) Terry Stop

6) Exigent Circumstances

72
Q

What is the rule from Carroll v. United States?

A

The Carroll Doctrine.

A warrant is not required to search vehicles if police have probable cause to believe the vehicle contains evidence of a crime, the instrumentalities of a crime, contraband, or the fruits of a crime.

73
Q

What is the rule from State v. McCarthy?

A

Oregon state law does not allow law enforcement to search an automobile without a warrant simply because it is an automobile.

74
Q

What is the rule from Terry v. Ohio?

A

Terry Stops are legal if there is reasonable suspicion.

A Terry Stop is when an officer observes unusual conduct that reasonably leads him to assume that criminal activity is afoot and that the people he is interacting with are armed, the police may conduct a limited search for weapons.

75
Q

What are some factors that have been held, in combination with other factors, to constitute reasonable suspicion?

A

-Criminal Activity

-Time

-Location

-Criminal Record

-Evasion

-Noncooperation

-Nervous Behavior

-Experience

76
Q

Relevant Factors for Totality of the Circumstances (for determining if consent has been voluntarily given)?

A

-The youth of the accused

-The education and intelligence of the accused

-The constitutional advice given to the accused

-The length of the detention

-The repetitiveness of the question

-The use of physical punishment

77
Q

What is the rule from Minnesota v. Dickerson?

A

The Plain Feel Doctrine

When an officer has reasonable suspicion to stop and conduct a limited search of a person, contraband may be seized when it is within the officer’s “plain feel.”

78
Q

What are examples of Exigent Circumstances?

A

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