The Warrant Requirement Flashcards
if there has been a search, what do the police need to make it reasonable? 3 options
Evidence is Inadmissible Unless: If there is state action and the person has standing and REP (or there was a physical intrusion) –
o the police must have either:
(a) a valid search warrant or
(b) in good faith relied on a defective search warrant or
(c) there is an applicable exception to the warrant requirement.
4 elements of a valid search warrant
Elements of a Valid Search Warrant:
Probable Cause. Probable cause is required for the issuance of a search warrant; probable cause is measured by the “Totality of the Circumstances.” For probable cause to exist, there must be a sufficient likelihood that contraband or evidence of a crime is (or will be) in the place to be searched.
• hearsay may be used
• affidavit supporting warrant must state facts, not conclusions
*****»> an assertion in the affidavit may be contested only if the affiant (i.e., police officer) knowingly or recklessly included a material false statement
• valid warrant may be based in part on an anonymous informer’s tip and/or the defendant’s criminal record or criminal reputation
Precision. Warrant must be precise on its face; it must state with particularity the place to be searched and things to be seized
• The “particularity” mandate is designed to prevent officers from using generally worded warrants to engage in broad-based fishing expeditions.
• Examples of particularity required:
»> If a search is conducted in an apartment building, the warrant must specify the unit to be searched
»> A search for “stolen property” is too general and thus fails the specificity requirement
Magistrate. Warrant must be issued by neutral and detached judicial officer (including court clerks for minor offenses)
• Persons not neutral: state attorney general, US Attorney General, person paid only when a warrant is issued (and not when the warrant is denied), or a person who accompanies police on the search
Properly and Promptly Executed. When police have a valid search warrant, they may detain persons found within or immediately outside the premises while they execute the warrant, but MAY NOT SEARCH such persons unless there is probable cause to arrest them
good faith defense - general rule
Good Faith Defense (“GFD”). If the warrant is valid, the search is constitutional and any evidence found is admissible at trial. But if the warrant is defective, any evidence found during the search is inadmissible, unless the executing officer’s reliance on the defective warrant was objectively reasonable and made in good faith.
good faith defense - 6 exceptions
But the good faith exception does not apply:
(1) when the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false;
(2) when the issuing magistrate wholly abandoned his or her judicial role
(3) when the warrant affidavit is so lacking in probable cause as to render official belief in its existence unreasonable; or
(4) when the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid.
The GFD also does not apply if
• (1) the officers executing the warrant knew or should have known that the affiant was deliberately or recklessly lying, or
• (2) there was no warrant.
general rule and list of 8 exceptions for search without a warrant
If there was a Fourth Amendment search and the police did not have a search warrant, the search is illegal –
unless one of the following exceptions apply: • (i) Search Incident to a Lawful Arrest • (ii) Automobile Exception • (iii) Plain View • (iv) Consent • (v) Stop and Frisk (Terry Stop) • (vi) Exigency • (vii) Routine Administrative Search • (viii) Community Caretaker
search incident to lawful arrest - rule and six sub rules (cars & compartments; wingspan; timing; traffic citations; result of an unlawful arrest)
Search Incident to a Lawful Arrest: If a person is lawfully arrested (probable cause and, in some cases, a warrant), the police may search the person and the area in his or her immediate control (i.e., a broad wingspan).
• In a car, a person’s wingspan includes the entire passenger compartment (including a locked glove box) and every item in the passenger compartment, but does not include the trunk.
A search of the passenger compartment of a car may take place even if the person is outside the car as long as:
»> the person is not secured (e.g., not handcuffed) and is within reaching distance of the passenger compartment OR
»> the police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle.
The police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
»> If a person is allowed to move, the wingspan “floats” with the person.
• During the arrest, the police may also make a protective sweep of any area beyond the accused’s wingspan if they have reasonable suspicion to believe accomplices may be present.
• To be valid, the search must be CONTEMPORANEOUS with the time and place of arrest.
»> But an inventory search may be conducted of an arrestee at the police station or of a lawfully impounded vehicle IF such search is conducted pursuant to an established procedure. A suspicionless strip search of an arrestee is permitted before placing him in the general prison population.
- A traffic citation is not an arrest for purposes of this exception.
- If the arrest is unlawful, the search is unlawful and any evidence found would be Fruit of the Poisonous Tree.
automobile exception - rule and 5 sub rules (scope of search; items in car; passengers; timing; “vehicle”; curtilage doctrine implications)
Automobile Exception: For this exception to apply, the police need PROBABLE CAUSE (i.e., the same probable cause needed for a warrant) to believe the car contains illegal items, contraband, or evidence of a crime.
»> The probable cause to search for an item may arise after a car is LEGALLY stopped (e.g., a dog alerts the officer to the presence of drugs during a routine traffic stop), BUT it must arise before anything or anyone is searched.
• If probable cause exists, the police may search the ENTIRE CAR (including the trunk) and any package or container that could reasonably contain such item.
• The police may search items (e.g., luggage, backpacks, purses) in the car that are owned by the driver or passenger if the item might contain the object of the search.
»> **all they need is PC to search the car itself
»> Absent probable cause to search or arrest a passenger, the police may not search a passenger’s body or items worn by the passenger, especially if the passenger has left the vehicle before the vehicle is stopped.
- Contemporaneousness is NOT required (e.g., the car may be impounded and searched).
- This exception applies to all vehicles, including RVs, but does not apply if the vehicle is obviously inoperative (e.g., a car on blocks).
- The police may not enter a home or its curtilage (e.g., carport) to access a vehicle under the automobile exception; due to the heightened privacy interests attached to the home and its curtilage, a warrant is required for such search.
plain view elements
Plain View: The plain view doctrine allows the warrantless seizure of evidence if:
• (1) The police officer is legitimately present (e.g., conducting a lawful search pursuant to a warrant) in the place where where he or she does the viewing (or smelling).
• (2) The incriminating character of the evidence is immediately apparent to the officer (i.e., if the officer must manipulate an item to determine whether it is stolen, this is not plain view), and
»> so NO MANIPULATION
• (3) The officer has a lawful right of access to the object itself.
»> If the police while standing on public property (or private property owned by someone other than the defendant) see in plain view an illegal item in a home, the police may not enter the home to seize the item. The police may use this information, however, to obtain a warrant.
»»>**remember, even if the police trespassed on your neighbor’s (private) property to see drugs in your house, you don’t have standing to assert your neighbor’s rights against trespass
consent - rule and sub rules:
result of police saying they have a warrant
co-occupants
landlords and tenants/guests
parents/children
revocation of consent
Consent: A person may voluntarily and intelligently consent to a search. The person giving consent must have authority (i.e., an interest in the property), but if the police reasonably believe the person has such authority, the search is valid.
• If the police say they have a warrant, this negates consent, but the police do not have a duty to warn a person that he or she has the right to withhold consent.
• Where two or more people have equal rights to use the property searched, one co-occupant usually may consent to a warrantless search and the evidence may be used against the other co-occupants. However, one co-occupant’s consent is not sufficient if the other co-occupant is present and objects to the search.
»> But police may conduct a search based on a co-occupant’s consent, even though the defendant had previously objected to the search if, due to his valid arrest, the defendant is absent at the time the co-occupant gives consent.
»> **if one occupant is not there, the present, consenting occupant likely cannot give consent to enter areas that were completely under the nonconsenting person’s control
- Landlords and hotel clerks generally LACK authority to consent to the search of the room of a tenant or guest.
- a parent may generally consent to a search of a child’s room, BUT NOT to areas completely under the control of the non-consenting co-occupant (e.g., a locked closet or foot locker or even a LOCKED room).
- The person granting consent may revoke it; in such event, the search must stop.
terry stop - rule and four sub rules (standard of suspicion & what can give rise to it; standards for anonymous tips; disclosure of identity; timing; terry frisk; when can an arrest be made)
Terry Stop and Frisk: The police need only REASONABLE AND ARTICULABLE SUSPICION (less than probable cause) of criminal activity or a completed crime to briefly detain a person.
»> so here, there must be more than a mere hunch – you need a particularized and objective basis for the stop (but you need not rule out the possibility of an innocent explanation)
• reasonable suspicion may arise from the officer’s personal knowledge or a police bulletin. It may also arise from an informer’s tip if the tip is accompanied by an indicia of reliability (like accurately predicting future action), such as information predicting the future behavior of the suspect. A suspect’s flight and presence in a high-crime area may, in part, create reasonable suspicion.
o anonymous tips: reasonable suspicion, like probable cause, is dependent upon both (1) the content of information possessed by police and (2) 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 (i.e. needs sufficient corroboration)
»> **even if tip isn’t sufficiently reliable on its own, if you predict future action, that action later occurring can corroborate the tip and give you sufficient RS
- If the Terry stop is valid, the suspect is required to disclose his or her identity upon request.
- A Terry stop must be BRIEF (i.e., a few minutes). If a suspect is required to come to the police station, this is a custodial arrest (which requires probable cause), not a Terry stop.
• terry frisk: if the police also have reasonable suspicion to believe that the suspect has a weapon, the police may frisk (i.e., pat-down) the suspect.
»> Weapons and contraband found are admissible if, based on the officer’s “plain feel” with no manipulation, the officer believes that it is a weapon or contraband.
»> The police may reach directly into a suspect’s clothing when they have information that a weapon is hidden there.
• If the officer develops probable cause during the Terry stop, the officer may arrest the suspect and make a full search incident to arrest.
vehicle frisk (as part of a terry stop)
• Vehicle Frisk: If, in the course of a lawful traffic stop, an officer has reasonable and articulable belief that the occupants of a vehicle are dangerous, the officer may order the occupants out of the vehicle and may frisk the occupants and the passenger compartment (including a locked or unlocked glove box) of the vehicle for weapons.
»> BUT MAY NOT search unless they have further PC
»> The vehicle frisk must take place during the temporary duration of the investigatory stop.
»> Moreover, the police may order the driver and passengers out of a vehicle during a routine, lawful traffic stop.
»> officer’s potential ulterior motive is immaterial
exigency - 3 situations
Exigency. This exception to the warrant requirement has three distinct subparts:
• (1) Evanescent Evidence: Exigent circumstances justifying a warrantless search exist when there is a compelling need for official action and no time to secure a warrant. Exigency includes scrapings under fingernails and other things that inherently dissipate.
»> Police ordinarily must obtain a search warrant to administer a blood alcohol test incident to a lawful DWI arrest; no warrant is needed for a breath test.
»»> A warrant is generally not required to take a blood test of a driver suspected of drunk driving who is unconscious and therefore cannot be given a breath test.
»»> A state may impose civil penalties (e.g., loss of a driver’s license) for failure to submit to a blood alcohol test but may not impose criminal penalties; a state may impose criminal or civil penalties for failure to submit to a breath test.
• (2) Hot Pursuit: For hot pursuit searches, police must be within a few minutes of the felon; once police enter a house or other building in hot pursuit, they may search anywhere necessary to respond to the exigency. In a hot pursuit search, the police may enter and search any house or building when following a fleeing felon.
»> **need not prove life-threatening injury
»> need PC of crime, suspect must know he is being chased, and can’t have too long a lapse of time
• (3) Emergency Aid: Police officers may enter a home without a warrant if they have an objectively reasonable basis for believing that an occupant has been (or is about to be) seriously injured or that an occupant is destroying evidence.
»> This exception applies even if the police create the exigency (e.g., the occupants begin destroying evidence when the police knock and announce their presence).
»> Some jurisdictions treat Emergency Aid as part of the Community Caretaker Exception.
routine administrative searches - administrative warrant
• Administrative Warrant: Administrative searches and inspections for health, fire, and safety purposes require a warrant, but the traditional probable cause standard is not utilized; the warrant will be issued upon a showing of a general and neutral enforcement plan.
o A probable-cause warrant is required to search a fire-damaged residence by officials seeking to determine the origin of the fire.
routine administrative searches - closely-regulated businesses
• Closely-Regulated Businesses: A warrant is not required for searches of highly regulated industries, such as automobile junkyards, and businesses involved in liquor, guns, and underground and strip mining.
o The search must be part of regular inspection program and conducted according to standard procedure.
• A warrant is also not required to seize spoiled or contaminated food.
routine administrative searches - public schools
Public School Searches: Public school officials may conduct a warrantless search of a student if:
o the official has REASONABLE SUSPICION that the search will turn up evidence of a violation of school rules or any law,
o the measures use to carry out the search are reasonably proportional to the objectives of the search, AND
o the search is not excessively intrusive in light of the student’s age and sex
