4A

Question 1

Topics

Answer 1

1. Search and Seizure
2. Unlawful arrest

Question 2

UNLAWFUL ARREST

Answer 2

• An arrest warrant is generally not req’d unless a person is arrested at his home.
• An arrest warrant must be supported by probable cause, which is a reasonable belief that the person violated the law.

Question 3

SEARCH AND SEIZURE

Answer 3

• The 4th A protects citizens against unreasonable searches and seizures.
• The 4th A is applicable to the states via the DP clause of the 14th A.

Question 4

SEARCH AND SEIZURE -

GOV’T CONDUCT (If at issue)

Answer 4

To assert a 4th A challenge, D must show gov’t conduct. D must show that the police/gov’t were involved in the search or seizure. Here…

Question 5

SEARCH AND SEIZURE -

REASONABLE EXPECTATION OF PRIVACY

Answer 5

(At issue only if it’s a search of a place, not a person.):

To assert a 4th A challenge, D must show a reasonable expectation of privacy.

To establish REP, D must show that he had at least an ownership or possessory interest in the place searched or items seized (e.g., renting hotel room).

Here…

Question 6

SEARCH AND SEIZURE -

CONCLUSION re: standing

Answer 6

Since there is both gov’t conduct and REP, D has standing to assert a 4th A challenge. (No need to move on, if not.)

Question 7

Route 1-

Warrant req’t

Answer 7

A valid warrant requires:

1. PROBABLE CAUSE that seizable material or evidence can be found at the premises to be searched;
2. issued by NEUTRAL MAGISTRATE, and
3. with a SPECIFIC DESCRIPTION of the place to be searched or items to be seized.

Here…

Question 8

Route 1 -

GOOD FAITH WARRANT EXCEPTION (mention if police used invalid warrant)

Answer 8

The exclusionary rule will not apply and the evidence will not be barred when:

• an officer acts in reasonable reliance of a facially valid warrant issued by a proper magistrate, and
• the warrant is ultimately found to lack probable cause.

EXCEPTIONS:

• Knew or should have known that info provided in affadavit was false, or
• lack of probable cause such that magistrate’s reliance was unreasonable.

Question 9

Route 1 and route 2:

EXCLUSIONARY RULE

Answer 9

Evidence obtained in violation of 4th A (and 5th/6th A) is inadmissible. D must have standing to assert, i.e., his own constitutional rights must have been violated.

Question 10

Route 1 and route 2-

FRUIT OF THE POISONOUS TREE

Answer 10

(Raise if at issue - there must be other evidence)

Generally, not only must illegally obtained evidence be excluded, but so must also all other evidence obtained or derived from the exploitation of that evidence.

EXCEPTIONS (“3 Ins”):

1. Independent Source (Evidence is obtained using a source independent of the original illegal conduct);
2. Inevitable Discovery (evidence would have been inevitably discovered through other legal police technique; independent source is preferable);
3. Intervening Acts of Free Will (intervening acts of D have purged the taint of the illegal discovery).

NOTE: ILLEGALLY OBTAINED INFO is allowed in impeachment, civil hearings, or parole.

Question 11

Route 2-

Warrant req’t

Answer 11

For a search and seizure to be valid, the gov’t must have acted pursuant to a valid warrant.

If the warrant is not valid, or if the police did not have a warrant, all the evidence will be deemed inadmissible unless an exception applies.

Here, no warrant was used…

Question 12

Route 1 and 2-

WARRANT EXCEPTIONS (“SPHACEES” P)

Answer 12

• SILA
• Plain view
• Hot pursuit
• Automobile
• Consent
• Exigent circumstances
• Evanescent evidence
• Stop and frisk
• Police checkpoint

Question 13

SILA

Answer 13

Upon a lawful arrest based on probable cause, the police may contemporaneously search an arrestee and his wingspan.

A protective sweep is permitted if reasonable belief that accomplices are present.

• SILA VEHICLES: If the arrestee is unsecured and might reasonably access the vehicle, OR if the offending evidence is reasonably in the car, the police can search the car and its compartments. If the arrestee does not have access to the car (e.g. secured in police car), the police may not search the compartments. HOWEVER, if there is probable cause, the police can rely on the automobile exception.

Question 14

Plain view

Answer 14

The police may make a warrantless search if they see evidence/instrumentalities of a crime, or contraband in plain view, so long as they are legitimately on the premises.

Question 15

Hot pursuit

Answer 15

Police in hot pursuit of a fleeing felon may make a warrantless search, and even pursue the suspect in a private dwelling.

Question 16

Automobile

Answer 16

If the police have probable cause to believe a vehicle contains contraband or evidence/instrumentalities of a crime, they may search the whole vehicle and any compartment that might reasonably contain the items.

• IMPOUND: If driver is arrested, police may search the arrestee’s vehicle.

Question 17

Consent

Answer 17

A warrantless search is valid if the police have a voluntary consent.

Knowledge of right to without consent is not required.

Question 18

Exigent circumstances

Answer 18

Police may conduct a search and seizure w/o a warrant to address emergencies that could affect health or safety.

Question 19

Evanescent evidence

Answer 19

Police may seize without a warrant evidence likely to disappear before a warrant can be obtained.

Question 20

Stop and frisk

Answer 20

• A police officer may stop and frisk a person w/o probable cause if the police have an articulable and reasonable suspicion of criminal activity.
• If police reasonably believe person may be armed and dangerous, a protective frisk may be conducted on outer clothing to search for weapons.
• Police can reach into clothing if on plain feel believe there is a weapon or contraband, but cannot manipulate clothing to get a better feel.

Question 21

Police checkpoint

Answer 21

Roadblock must;

1. stop cars on the basis of a neutral, articulable standard; and
2. purpose must be related to the use of automobiles (e.g. not to check for illegal drugs).