CrimP 4 - Exc' to warr req

Question 1

FOURTH AMENDMENT—EXCEPTIONS TO THE WARRANT REQUIREMENT

Answer 1

All WARANTLESS searches conducted by law enforcement officers are unconstitutional UNLESS they fit into one of six recognized exceptions to the warrant requirement.

Question 2

Warrant Exception: Search incident to Constitutioanl arrest (SILA)

Answer 2

• Police can search after valid arrest
• Police can make protective sweep of area.
• Search must be CONTEMPORANEOUS in time and place with the arrest.

Incident to a constitutional arrest (that is, one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence.
The police may also make a protective sweep of the area if they believe accomplices may be present.
The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of automobiles, the term “contemporaneous” does not necessarily mean “simultaneous.”
Thus, for example, the police may search the interior of an automobile after securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested. (below.)

Question 3

Constitutional Arrest Requirement

Answer 3

If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.

Question 4

Geographic scope

Answer 4

Cops can search person AND the areas within the persons WINGSPAN can be searched.

Question 5

SILA: Automobiles

Answer 5

Police may search PASSENGER COMPARTMENT of an automobile INCIDENT TO ARREST, ONLY IF:
- Arrestee is UNSECURED, and may still gain access to the interior of the vehicle, OR…
- The police REASONABLY believe that evidence of offense FOR WHICH the person was arrested may be found in the vehicle.

***Remember, it is OR - even if the suspect was handcuffed and in the cruiser, can still search if reasonbly believe that E of offesne for arrest could be found in the vehicle.
** The type of Evidence found does NOT matter, so long as the search was valid. We do not care if the e found was different than what gave rise for the officer to search.

Police CANNOT search the TRUNK incident to arrest.

Question 6

Technological Searches

Answer 6

In assessing the validity of a search incident to arrest involving things that did not exist when the Fourth Amendment was adopted (for example, cell phones, blood alcohol tests), Court will balance the degree to which the SILA intrudes upon a person’s privacy against the degree to which the search is needed to promote legitamite interests.
- Warantless BREATH TEST permitted, BUT NOT BLOOD TEST.
- Physical attributes of cell phone may be searched but not data.

a. DUI Arrest Justifies Breath (But Not Blood) Test
Contemporaneous with an arrest for intoxicated driving, police officers may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not administer a warrantless blood test.
Rationale: A breath test is not very intrusive and leaves no lasting sample with the government, while a blood test requires piercing the skin and leaves the government with a genetic sample.
As a corollary, violation of an implied consent law (that is, a law providing that by driving on the roads a driver impliedly consents to a blood test if stopped for intoxicated driving) can be punished civilly (for example, suspension of license) but not criminally.

b. Physical Attributes of Cell Phone May Be Searched But Not Data
Because of their strong interest in assuring that arrestees do not have weapons or contraband, police officers my examine the physical attributes of a person’s cell phone upon arrest. However, officers may not examine the data on a cell phone without a warrant since it cannot be used as a weapon.

Question 7

b. Physical Attributes of Cell Phone May Be Searched But Not Data

Answer 7

Because of their strong interest in assuring that arrestees do not have weapons or contraband, police officers my examine the physical attributes of a person’s cell phone upon arrest. However, officers may not examine the data on a cell phone without a warrant since it cannot be used as a weapon.

Question 8

Search Incident to Incarceration or Impoundment

Answer 8

At the police station, the police may make an INVENTORY search of the arrestee’s belongings pursuant to established department procedure.

Similarly, the police may make an inventory search of an impounded vehicle.

Question 9

Warrant Exception: AUTOMOBILE EXCEPTION

Answer 9

If police have probable caus to believe that vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the ENTIRE vehicle and any container that might REASONABLY CONTAIN the item for which they had PC to search.

If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later.

However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant.

Note: If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.

Note: the police have fairly broad authority to search a vehicle depending on what they are looking for. If there is probable cause to search the vehicle, the police can search the entire car and anything in it that might contain the evidence. Thus, if they are looking for evidence of illegal drugs, they can look in almost anything in the car, but if they are looking for undocumented aliens, they cannot look inside a small suitcase.

Question 10

Passenger’s Belongings

Answer 10

The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.

Question 11

Containers Placed in Vehicle

Answer 11

If the police have probable cause only to search a container in a vehicle (for example, luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle.

Question 12

Automobile exception: When can, and must, the Probable Cause to search the car arise?

Answer 12

PC necessary to justify search of car can ARISe AFTER car is stopped.
BUT, the probable cause must arise before anything or anybody is searched.

Question 13

If an officer pulls over a car and sees something in plain view,

Answer 13

they have PC to search.

Question 14

Warrant Exception: PLAIN VIEW

Answer 14

The police may make a warrantless seizure when they:
• Are LEGITIMIATELY PRESENT on the premises (legitamtiely present when viewing the items).
• Discover evidence, fruits or instrumentalities of crime, or contraband
• See such evidence in PLAIN VIEW; and
• Have probable cause to believe (that is, it must be IMMEDIATELY APPARENT) that the item is evidence, contraband, or a fruit or instrumentality of crime.

For this exception, be sure the police officer is legiti- mately on the premises (that is, where they have a lawful right to be), such as on a public sidewalk or in a home executing a warrant. If the officer is, anything the officer sees (or smells, hears, etc.) in plain view is admissible. Thus, if while execut- ing a search warrant for a handgun, the officer opens a small drawer where the gun could be and sees heroin, the heroin is admissible since it was in plain view of an officer who had a right to look there.

Question 15

Warrant Exception: CONSENT

Answer 15

Warantless search is valid if police have VOLUNTARY CONSENT.

Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent.

SCOPE: The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 16

Police saying they have a warrant….

Answer 16

NEGATES consent.

Question 17

Authority to Consent

Answer 17

• Person with APPARENT equal right to use or occupy property may consent. .
• BUT, occupant CANNOT give valid consent when co-occupant is present and OBJECTS.
•If co-occupant is removed for unrelated reason, police may act on consent of remaining occupant.

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
- Be careful to check whether the person has reasonably apparent authority to consent. For example, a homeowner parent can certainly consent to a search of the home’s kitchen, and probably to a search of their son’s room unless the facts strongly indicate that the parent does not have a right to go in the room (for example, always locked, only defendant has key, etc.). Note: The Supreme Court has not yet decided whether a parent may consent over the objection of their child.

However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant.

If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent.

Question 18

Warrant Exception: STOP AND FRISK

Answer 18

Terry STOP: Breif detention for purpose of Investigating suspicious conduct.
A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion (RS) of criminal activity. The officer may require the detainee to state their name.

Terry FRISK: Pat down of outer clothing and body to check for weapons.
If the officer also reasonably believes that the person may be ARMED and presently dangerous, the officer may conduct a protective frisk.

A stop is not an arrest, and thus an officer need not have probable cause. However, the officer must have a reason to believe that criminal activity is afoot.
Seeing a person pace in front of a jewelry store might justify a stop. A frisk will be justified only if the officer reasonably thinks that the suspect has a weapon.

Question 19

Scope of Terry frisk

Answer 19

The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.

Officer may seize any item that officer reasonably belives, based ON PLAIN FEEL, is weapon OR contraband.
***Watch out for “MANIPULATED” - means INVALID.

During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admis- sible as evidence.

Note: If probable cause arises during an investigatory stop, the detention can become an arrest and the officer can then conduct a full search incident to that arrest

Question 20

While on patrol in a high crime area, police officers notice a man standing on the corner wearing a red bandana and red shoes (typical colors of the Bloods street gang). The officers pull over and observe the man for fifteen minutes and the man never moves from the street corner. Suspecting him of being a drug dealer, the police approach him and say they would like to ask him a few questions. The man says he needs to leave the area and refuses.
Is this a VALID TERRY STOP?

Answer 20

NO, not enough for Reasonable Suspicion

Question 21

If probable cause arises during an investigatory stop….

Answer 21

If probable cause arises during an investigatory stop, the detention can become an arrest and the officer can then conduct a full search incident to that arrest.

Question 22

Automobile stops (Terry stop and frisk of a vehicle).

Answer 22

If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
(1) conduct a frisk of the suspected person, and
(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed.

Question 23

Exception to warrant: HOT PURSUIT, EVANESCENT EVIDENCE, AND EMERGENCY AID

Answer 23

Evanescent evidence: Evidence that might DISAPPEAR quickly if police took time to get warrant (fleeting evidence).

For example, a police officer can scrape under a suspect’s fingernails without getting a warrant because if the officer took the time to get a warrant the defendant might go wash their hands.
But note: In 2013, the Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so).

Question 24

Blood sample for a DUI arrest

Answer 24

Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so).

For example, a police officer can scrape under a suspect’s fingernails without getting a warrant because if the officer took the time to get a warrant the defendant might go wash their hands.

BUT it could be impracticale.

Question 25

Hot pursuit

Answer 25

Police in hot pursuit of fleeing felon may make warantless search and seizure and may pursue suspect into private dwelling.
However, if the fleeing person is suspected of a misdemeanor, their flight does not always justify a warrantless entry into a home.
The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry.

Rule of thumb: 15 MINUTES - If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under the exception.

Question 26

Hot pursuit and plain view

Answer 26

If the police are truly in hot pursuit of a felon, they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible.

Question 27

Emergency Aid/Community Caretaker Exception

Answer 27

Police may enter premises without warrant if officer faces emergency that threatens health or safety.

A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public. However, the emergency aid exception does not permit an officer to conduct a warrantless search of a person’s home.

Question 28

ADMINISTRATIVE INSPECTIONS AND SEARCHES

Answer 28

Inspectors must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.

Question 29

Exceptions Permitting Warrantless Searches

Answer 29

The following warrantless searches have been upheld:
• Administrative searches to seize spoiled or contaminated food
• Administrative searches of a business within a highly regulated industry
• Inventory searches of arrestees or their vehicles pursuant to established department procedure
• Searches—including suspicionless strip searches—of prisoners before being admitted into the general prison population, even of persons arrested for minor crimes
• Searches of AIRLINE PASSENGERS prior to boarding
• Searches of parolees and their homes—even without reasonable grounds for the search, at least as long as there is a statute autho- rizing such searches
• Searches of government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct
• Drug tests of railroad employees involved in an accident
• Drug tests of persons seeking customs employment in positions
connected to drug interdiction
• Drug tests of PUBLIC SCHOOL students who participate in extracurricular activities

Question 30

Public School Searches

Answer 30

• REASONABLE GROUNDS NECESSARY
  Search reasonable if:
• Offers MODERATE CHANCE of finding evidence of wrongdoing
• Measures REASNABLY RELATED to search objectives
• Search NOT EXCESSIVLEY INTRUSIVE in light of age and sex of student and nature of infaction.

A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary.
A school search will be held to be reasonable only if:
• It offers a moderate chance of finding evidence of wrongdoing.
• The measures adopted to carry out the search are reasonably related to the objectives of the search; and
• The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 31

Smoking on school grounds

Answer 31

Can give rise to search.

Question 32

Searches in Foreign Countries

Answer 32

The Fourth Amendment does not apply to searches and seizures by United States officials in foreign countries and involving an alien, at least where the alien does not have a substantial connection to the United States.
Thus, for example, the Fourth Amendment was held not to bar the use of evidence obtained in a warrantless search of an alien’s home in Mexico.

Question 33

Searches at the Border or Its Equivalent

Answer 33

Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the U.S. border, due to national sovereignty interests.
Roving patrols inside the U.S. border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains undocumented aliens.
Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion.

Question 34

Opening International Mail

Answer 34

Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

Question 35

Immigration Enforcement Actions

Answer 35

The Immigration Services Division may do a “factory survey” of the work force in a factory to determine citizenship of each employee.
Moreover, even illegally obtained evidence (that is, evidence obtained in violation of the Fourth Amendment) may be used in a civil deportation hearing.

Question 36

Detentions

Answer 36

Officials with “reasonable suspicion” that a traveler is smuggling contraband in their stomach may detain the traveler.

Question 37

WIRETAPPING AND EAVESDROPPING

Answer 37

General rule: It IS a search within the 4A, so requires a warrant.
Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment.

A valid warrant authorizing a wiretap may be issued if
(1) there is showing of probable cause,
(2) the suspected persons involved in the conversations to be overheard are named,
(3) the warrant describes with particularity the conversations that can be overheard,
(4) the wiretap is limited to a short period of time,
(5) the wiretap is terminated when the desired information has been obtained, and
(6) return is made to the court, showing what conversa- tions have been intercepted.

BUT EXCEPTIONS::::

Question 38

A valid warrant authorizing a wiretap may be issued if… (5)

Answer 38

A valid warrant authorizing a wiretap may be issued if
(1) there is showing of probable cause,
(2) the suspected persons involved in the conversations to be overheard are named,
(3) the warrant describes with particularity the conversations that
can be overheard,
(4) the wiretap is limited to a short period of time,
(5) the wiretap is terminated when the desired information has been obtained, and (6) return is made to the court, showing what conversa- tions have been intercepted.

Question 39

Wiretapping exception: Unrelieable Ear

Answer 39

A Speaker assumes the risk that the other person CONSENTS to government monitoring or is an informant wired for sound or taping the conversation.

Speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation

Question 40

Wiretapping exception: Uninvited Ear

Answer 40

Speaker has no Fourth Amendment claim if they make no attempt to keep the conversation private.

Question 41

Pen Registers

Answer 41

Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute judicial approval is required before a pen register may be used.

Question 42

METHOD OF OBTAINING EVIDENCE THAT SHOCKS THE CONSCIENCE

Answer 42

TORTURE.
Evidence obtained in a manner that shocks the conscience—in other words, a manner that offends a “sense of justice”—is inadmissible under the Due Process Clause. If a crime is induced by official actions that shock the conscience, any conviction stemming from those actions is unconstitutional.