CrimP 3 - 4A Ev search and seizure

Question 1

FOURTH AMENDMENT—EVIDENTIARY SEARCH AND SEIZURE

Answer 1

Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires a warrant except in six circumstances.

Question 2

Evidentiary search and seizure issues should be approached using the following analytical model:

Answer 2

Evidentiary search and seizure issues should be approached using the following analyt- ical model:
• Does the defendant have a Fourth Amendment right (seizure by the government concerning a place or thing in which defendant had a reasonable expectation of privacy) or does the search involve a physical intrusion into a constitutionally protected area?
• Did the police officers have a valid warrant (issued by a neutral and detached magistrate on a showing of proba- ble cause and reasonably precise as to the place to be searched and items to be seized)?
• If the police officers did not have a valid warrant, was the search or seizure within one of the six exceptions to the warrant requirement?

Question 3

ANALYSIS: Evidentiary search and seizure issues should be approached using the following analyt- ical model:

Answer 3

1. is there governmental conduct?
2. Is there standing
3. Is there a valid warrant? TWO Ps for a valid warrant.
   - If no warrant, or warrant invalid….
4. Are there exceptions to the warrant requirement.

fifth amendment right to counsel, sixth amendment right to counsel

Question 4

Step 1: Governmental Conduct

Answer 4

• Police officers
• Government agents
• Private individuals acting at direction of police***: Police ask roommate to search your room, he is acting at the direction of the police.
  BUT, does not protect against privaetly paid police unless they are deputized and have power to arrest (campus security, mall cops).

Question 5

GOVERNMENTAL CONDUCT

Answer 5

The Fourth Amendment generally protects only against governmental conduct (that is, police officers, other government agents, or private individuals acting at the direction of the public police).
It does not protect against searches by privately paid police unless they are deputized as officers of the public police.
Examples of privately paid police include store security guards, subdivision police, and campus police.

Question 6

Step 2: Standing

Answer 6

Standing = Reasonable expectaion of privacy with resepct to place searched or item seized. = standing.

Determined under totality of circumstances.

Question 7

Standing

Answer 7

A person must have standing to object to a governmental search.
To have a Fourth Amendment right, a person must have their own reasonable expectation of privacy with respect to the place searched or the item seized.
The determination is made on the totality of the circumstances, but a person has a reasonable expectation of privacy any time:
• The person owned or had a right to possession of the place searched
• The place searched was in fact their home, whether or not they owned or had a right to possession of it (for example, a grandchild living at a grandparent’s home); or
• The person was an overnight guest of the owner of the place searched

There is an important “sometimes” category of standing: The person owns the property seized. If a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched.

Question 8

REASONABLE EXPECTATION OF PRIVACY

Answer 8

There are two ways in which searches and seizures can implicate an individual’s Fourth Amendment rights:
(1) search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; or
(2) physical intrusion by the government into a constitutionally protected area to obtain information.

Question 9

Automatic standing: When person has reasonable expectation of privacy

Answer 9

• Person owned or had right to possess place searched
• Place searched is person’s home
• Person is overnight guest of owner.

Question 10

Important “sometimes” category of stanidng:

Answer 10

The person owns the the property seized. If a person owns the property seized, they have standing ONLY if they have a reasonable expectation of privacy in the item or area searched.

Question 11

No reasonable expecation of privacy in something that you tried to throw away.

Answer 11

If u try to get rid of something, u lose your exp of privacy

Question 12

Objects held in pulbic

Answer 12

A person does not have a reasonable expectation of privacy in objects held out to the public.

Generally, this includes information in the hands of third parties (such as bank account records).

BUT, a person does have REP in cell-site location information (personal location info from cell-site location info) which is stored in the hands of third parties - the cops need a warrant for this.

Question 13

List of things held out to the public, the seizure of which implicates NO right to privacy

Answer 13

List of things held out to the public, the seizure of which implicates no right to privacy:
1. The sound of your voice
2. the style of your handwriting
3. The paint on the outside of your car
4. Account records held by a bank
5. The location of your car on a public street or in a driveway
• In Jones, the installation of a GPS device on a suspects car constitutews a search within the fourth amendment.
•• BUT, tailing you is fine.
6. Anything that can be seen across the open field.
7. Anything that can be seen from flying over public airspace.
8. The ODORS emanating from your luggage or car; AND
9. GARBAGE set out on the CURB for collection. BUT, garbage still against the house is NOT ALLOWED.

Note; use of sense-enhancing tech that is NOT in public use to obtain info from inside suspects home (thermal imager) that could not otherwise by obtained without physical intrustion violates the usspects leg expectation of privacy.

And police officers may not covertly and trespassorily place a GPS tracking device on a person’s automobile without a warrant.

Question 14

Step 3: Valid search warrant.
2 P’s of Step 3:

Answer 14

There are two core requirements for a facially valid search warrant: probable cause and particularity.
2 Ps of Step 3:
- PROBABLE CAUSE
- PARTICULARITY

Question 15

SEARCHES CONDUCTED PURSUANT TO A WARRANT

Answer 15

Generally, criminal law enforcement officers must have a warrant to conduct a search unless it falls within one of the six exceptions to the warrant requirement.
There are two core requirements for a facially valid search warrant: probable cause and particularity.

Question 16

Probable cause: showing of probable cause

Answer 16

Warrant will be issued ONLY if there is PROBABLE CAUSE to believe that seizable evidence will be found on the person or premises at the time the warrant is executed.

Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions.

Question 17

showing of probable cause - Use of informers

Answer 17

Totality of circumstances test - An affidavit based on an informer’s tip must meet the “totality of the circumstances” test.

Informants reliability and credibility or their basis for knowledge are relevant to this determination.

Identity generally need not be revealed.

Question 18

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes…

Answer 18

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes ALL THREE of the following:
• A false statement was included in the affidavit by the affiant (the officer applying for the warrant)
• The affiant intentionally or recklessly included the false statement; and
• The false statement was material to the finding of probable cause.

Note: This test for invalidating the affidavit is very restrictive—all three requirements for invalidity (falsehood, intentionally or recklessly included, and material to probable cause) must be met. Thus, if the affiant believed the lie, or if they intentional- ly included the lie but it was not material to the finding of probable cause (because there was sufficient other evidence), the affidavit is valid. Therefore, a defendant is rarely successful in challenging the affidavit.

Question 19

Good faith exception: Police May Reasonably Rely on Validity of Warrant:

Answer 19

Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.

This good faith exception applies ONLY if the police obtained a warrant and it is invalid.
The exception does not apply if the police failed to obtain a warrant.

Question 20

Particularity - Warrant Must Be Precise on Its Face:

Answer 20

Warrant must describe with PARTICULARTY the place to be searched and items to be seized.

If it does not, the warrant is unconstituionoal, even if the underlying affidavit gives such detail.

Question 21

Warrant may be anticipatory

Answer 21

A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued.

Question 22

Search of Third-Party Premises Permissible

Answer 22

A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there.

Question 23

Neutral and Detached Magistrate Requirement

Answer 23

The magistrate who issues the warrant must be NEUTRAL and detached (for example, a state attorney general in charge of prosectuions is not neutral).

Question 24

Warrant Execution

Answer 24

• ONLY POLICE, NOT private citizens, may execute warrant
• No third parties UNLESS identifying stolen property.
• Violation of knock and announce rule will NOT result in suppression of evidence.

Only the police (and not private citizens) may execute a warrant, and it must be executed without unreasonable delay.

Police must knock, announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation).

The police may not be accompanied by any third parties unless the third parties are present to aid in identifying stolen property.

The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant.

Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.

In any case, remember that violations of the knock and announce rule will not result in the suppression of evidence otherwise properly obtained— the exclusionary rule does not apply here.

Question 25

Search of Persons Found on Searched Premises

Answer 25

A warrant to search for contraband authorizes the police to DETAIN occupants of the premises during a search,
but a search warrant does NOT authorize the police to SEARCH persons found on the premises who were NOT named in the warrant.

Neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.
Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed.
Of course, if a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a Terry pat down for weapons.