Exam 3 Fourth Amendment Flashcards
EPO 2
Identify when a Reasonable Expectation of Privacy (REP) exists
- The individual must have exhibited an actual (subjective) expectation of privacy
- The Expectation must be one that society is prepared to recognize as reasonable
The absence of either 1 or 2 means that no REP exists and no “search” has been conducted.
- It is not a “Search” to observe conduct that occurs openly in public, such as on a public street.
- Observations made from a lawful vantage point that develop PC do not constitute a “Search” under the 4th Amend.
Epo 1
Recognize when the 4th Amendment applies to Governmental Action
IF: Govt action Invades or Intrudes REP THEN: 4th Amendment applies 4th Amendment must be followed
If not followed evidence suppressed, LEO and US sued, LEO Prosecuted
Acts as a Restraint on the entire govt.
*LEOs
*Building Inspectors
*Occupational Safety and Health Act inspectors
*Firefighters entering privately owned premises
Does NOT regulate private conduct, except when the private citizen is acting as an instrument or agent of the govt.
3 Factors
*Whether the Govt knows of or acquiesces in the private actor conduct
*Whether the private party intends to assist LEO at time of search
*Whether the Govt affirmatively encourages, initiates or instigates the private action
Law enforcement officials + LE task
Common REP “Search” Areas and Situations
- Curtilage and Open Fields
- Curtilage (part of the home itself) has REP
- Open Fields (unoccupied or undeveloped area outside of curtilage) NO REP
- LE can enter into open fields for legitimate LE purposes even with NO Trespassing sings are posted
- Government Workplace
- Employee may have REP in their offices, filing cabinets and computers
- Supervisor can search if supervisor has Reasonable Suspicion of wrong doing
- Abandoned Property
- NO REP
- Mail
- REP in first class and higher
- NO REP for outside of letter or package
- REP of letters and packages sent through private carriers
- Canine Sniffs
- Does not violate REP
- Sensory Enhancements
* Thermal imaging to detect heat would constitute a search - Aircraft Overflights
* No REP violation
REP
- Open/Plain View=NO 4th Amendment Application (Right to be=Right to see
- Usually 4th Amendment will NOT apply IF VISUAL enhancement merely facilitates an observation which could be made by the unaided observed without violating REP
- Mere use of flashlight or other source of artificial illumination USUALLY does NOT invalidate otherwise proper observation
- Distance degree of magnification or illumination and nature of REP in place and activity observed will matter.
- Use of a device to capture private human conversation DOES INVADE REP
- Enhancing the Five Human Senses:
- Conversation=high REP
- Conversations overheard with the naked ear in a place entitled= NO REP
- Govt agent using device to overhear phone conversation invades REP
Smell and Canine
*As long as stop/detention is lawful, use of canine will not invade REP
Common REP “Search” Areas and Situations
- The Body
- Requires a seizure of that person
- Internal evidence (warrant) vs external evidence (no warrant)
- Vehicles
- Exterior or Interior of the Vehicle
- NO REP for exterior
- Passengers typically have NO REP inside of vehicles, although do have REP for any personal property (ie purse or backpack)
- Homes
- High expectation REP
- Exists even if home is temporarily unoccupied
- Overnight guests of a homeowner are entitled to REP
- Frequent visitor entitled to REP
- Social and commercial visitors generally have no REP
- Same protection extended to hotel and motel rooms, must factor in who rented the room and who has right to control or exclude others use of room.
- Containers
- REP in his or her containers at least where those containers do not reveal their contents
- Private search can eliminate REP
REP (residences)
MAXIMUM REP Home is your Castle *Permanent or Temporary *Occupied or unoccupied vs abandoned -Mansion -Cottage -Apartment -Efficiency Apartment (Studio) -Dorm Room -Motel Room
Tent??-
Trailer??-Are you stationary or mobile? Stationary yes, mobile no
REP Continued
First Rule: 4th Amend focused solely on ownership. Has to be a physical trespass
Second Rule: 4th Amend protects people, not places. Protects privacy upon which one justifiably relies US v Katz (phone booth)
Subjective-Accused himself and believed he had privacy
Objective-Society prepared to recognize that accused’s Expectation of Privacy Reasonable
Nexus-Connection between person place and items
REP (Outside)
NO REP in Open Fields and Common Areas (Apartment Hallways)
***So long as the curtilage is not entered, LEO conducting a criminal investigation may go upon suspect’s open fields despite fences and “no trespassing” signs
Factors:
-How close to the house?
-Within enclosure surrounding the house?
-How area is used?
-Are precautions taken to shield area from observation?
Curtilage does not have curtilage
LEO do not violate REP when LEO cross curtilage on driveways, paths, walkways and porches to knock and talk in the same way that the public is invited to do so
Containers
General Rule:
REP exists inside closed container
Location of container is key
Whether container is locked or unlocked is occasionally important
Circumstances Which Defeat REP
Abandoned Property
Aerial Overflight
Garbage left for curbside Pickup
*Garbage still on property would still have REP
EPO 3
Probable Cause and Reasonable Suspicion
Preponderance of Evidence
PC level of certainty is a lower standard then preponderance of Evidence per the Supreme Court
Reasonable Suspicion less then PC
Reasonable Belief-Fair Probability=Probable Cause
Reasonable Suspicion-Fair Possibility=Reasonable Suspicion
Search or Seize->Arrest->PC
Frisk, Detain or Secure->Stop or Detain->RS
Voluntary Contact or Consensual Encounter
-amount of evidence or level or certainty needed to justify initiating a voluntary contact or mere encounter: None; Bare Suspicion; Mere Suspicion; Hunch
Judge’s Test:
Would a reasonable person believe he or she is free to refuse the officers request; free to refuse to answer questions, free to the leave
EPO 4
Use of Race in Law Enforcement
Two Standards:
High: Constitution prohibits racial profiling
Higher: DOJ Guidance bans racial profiling
Three Contexts:
Spaontaneous, off the cuff decisions at post or on patrol
Part of specific crime or identified criminal
Threats to national security: Securing borders, preventing terrorism and catastrophic attacks
DOJ Guidance extends common sense to prohibit off-the-cuff spontaneous decisions based in whole or part on Race OR Ethnicity
DOJ Guidance does NOT prohibit off-the-cuff decisions based on Gender, Age, Socio-economic status, Religion, etc
DOJ Guidance does NOT prohibit using Race or Ethnicity in other contexts
*Spontaneous decisions at post or on patrol (Stop or frisk because of race)
*Part of specific crime or identified criminal
-Relevant to the locality or time frame of criminal activity
-Info must be trustworthy
-identifying characteristics must be tied to the particular criminal incident, a particular criminal scheme, or particular criminal org
(White suspect or ethnic gang activity)
*Threats to National Security (Airport Screening)
EPO 5 Identify when probable cause exists to the extent that an arrest or search may be justified
Search Warrant What: Evidence, contraband, fruits, instrumentalities Where: Place we want to Search When: Time we want to search Staleness can be an issue
Arrest Warrant
What: Crime been committed
Who: By the person we want to arrest
Staleness is seldom an issue
EPO 5
Probable Cause
Must be based on facts, NOT someone else’s conclusions or suspicions
Investigator seeking warrant
Investigator’s informant and/or witnesses
Can be, often is, based on hearsay:
Investigator can tell magistrate what informant told investigator
Generally, these informants are per se credible/reliable:
LEOs are reliable
Collective LEO knowledge through several different sources
Eyewitnesses and Victims
Partner-in-Crime
Statement Against Interest (statements that could get informant in trouble too)
If based on hearsay, informant’s overall believability an issue; overall believability shown with AGUILAR test:
- Informant’s basis of knowledge: Opportunity to observe or learn
- Informant’s veracity (credibility of source): Identity and track record
Problem with Aguilar test is basis of knowledge of informant
Aguilar test -> GATES case which is Totality of Circumstances
CORROBORATION: Further investigation shows that tip accurately predicts future or has credible detail
EPO 6
Identify the Orgin, purpose and scope of the exclusionary rule
Origin - Supreme Court
Purpose- discourage police misconduct
scope - at the trial
Police cant use illegal got evidence against a person a trial
