4A Searches and Seizures

Question 1

What is a government seizure of a person?

Answer 1

Considering totality of circumstances, reasonable person would feel that he was not free to decline the officer’s requests or otherwise terminate the encounter.

4A requires:

a) physical force or
b) show of authority followed by submission.

Question 2

Rule re: pretextual stops

Answer 2

If officer has PC to believe a traffic law has been violated, officer may stop the suspect’s car, even if ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop

Also: can let narcotics dog sniff car as long as it doesn’t go on longer than what’s necessary for a normal investigatory stop

Question 3

When is warrantless search of gov employee’s desk and file cabinets permissible under 4A?

Answer 3

1. Reasonable in scope
2. Justified at its inception by a nonivestigatory, work-related need or reasonable suspicion of work-related misconduct

Question 4

Examples of “special needs” which justify gov-required drug testing without a warrant, probable cause, or even individualized suspicion

Answer 4

1. Requiring gov employees involved in accidents to be tested for drugs after the accidents
2. Requiring persons seeking Customs positions connected to drug interdiction to be tested for drugs
3. Requiring public school students who participate in any extracurricular activities to submit to random drug tests

Question 5

List examples of things held out to the public, which have no expectation of privacy.

Answer 5

Paint on the outside of a car

Handwriting

Smell of one’s luggage or car

Account records held by bank

Magazines offered for sale

Question 6

6 Exceptions to Warrant Requirement

Answer 6

1. Search incident to lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and frisk
6. Hot pursuit, exigent circumstances, evanescent evidence, other emergencies

Question 7

When are warantless searches of a parolee and his home valid without reasonable suspicion?

Answer 7

State statute conditions parole on agreement to submit to searches at any time, with or without a search warrant or probable cause

Question 8

What is an arrest?

Answer 8

Police take a person into custody against her will for purposes of criminal prosecution or interrogation

Question 9

What are the requirements for a non-emergency arrest of an individual in her own home?

Answer 9

1. Warrant
2. Reason to believe suspect is within the home

If no warrant, must show sufficient exigent circumstances to overcome presumption of unreasonableness

Question 10

What is required to satisfy “reasonable suspicion”?

Answer 10

More than a vague suspicion, judged under totality of the circumstances

Question 11

What happens if the police improperly arrest a person?

Answer 11

They may detain him if they have PC to do so, and the invalid arrest is not a defense to the offense charged.

However, can’t use any evidence that is a fruit of the unlawful arrest at trial (exclusionary rule).

Question 12

When is a search conducted by public school officials reasonable?

Answer 12

1. It offers a moderate chance of finding evidence of wrongdoing
2. Measures adopted to carry out search are reasonably related to the objectives of the search
3. Search is not excessively intrusive in light of age and sex of student and nature of infraction

Question 13

What is generally required for police officers to stop a car?

Answer 13

This is a 4A seizure. They need at least a reasonable suspicion to believe that a law has been violated.

Question 14

What is required for an investigatory detention?

Answer 14

Reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime

Question 15

What are the 4A implications of seizure of a person for a grand jury appearance?

Answer 15

This is NOT within 4A protection, so a subpoena for testimony, handwriting or voice exemplars, etc. does not require PC and is not subject to 4A reasonableness requirements

BUT, it might be found unreasonable if extremely broad and sweeping or used for harassment purposes

Question 16

Requirements for a valid warrant authorizing a wiretap

Answer 16

1. PC to believe that a specific crime has been or is being committed
2. Suspected persons whose conversatons are to be overheard must be named
3. Warrant must describe with particularity the conversations that can be overheard
4. Wiretap must be limited to short period of time (but can obtain extensions)
5. Provisions must be made for termination of wiretap when desired info has been obtained
6. Return must be made to the court, showing what converations have been intercepted

Question 17

What happens to evidence seized pursuant to a warrant that was later found to not be supported by PC?

Answer 17

Evidence obtained by police in reasonable reliance on a facially valid warrant may be used in a prosecution

Question 18

When may the police arrest a person in a public place without a warrant?

Answer 18

1. Probable cause to believe the person has committed a felony

or

2. Misdemeanor committed in officer’s presence (any sensory awareness)

Question 19

Requirements and rules for warrant exception:

Automobile exception

Answer 19

1. probable cause to believe vehicle contains contrabrand or fruits, instrumentalities, or evidence of a crime
2. w/ full PC to search a vehicle, may search entire vehicle and all containers within vehicle that might contain the object for which they are searching
3. w/ PC to search only a container recently placed inside (e.g. a briefcase), must limit search to that container
4. contemporaneousness not required (can tow and search later)

Question 20

7 rules & requirements for valid execution of a warrant

Answer 20

1. By police
2. Without unreasonable delay
3. Announcement + reasonable time for admittance before using force to enter (with exceptions)
4. Scope limited to what’s reasonably necessary
5. May seize contraband or fruits or instrumentalities of crime, whether or not specified in warrant
6. May ONLY search persons found on premises not named in warrant if they have PC to arrest her (may search her incident to the arrest) OR may frisk if reason to believe armed and dangerous
7. Limited authority to detain occupants of premises while search is being conducted – limited to persons in immediate vicinity during execution

Question 21

Requirements and rules for warrant exception:

Consent

Answer 21

1. Requires voluntary consent

Knowledge of right to withhold is a factor to consider, not a prerequisite

2. Police must reasonably believe that the person consenting has apparent equal right to use or occupy property, even if evidence found may be used against other owners/occupants

Exception: where other party is present and objects

3. Search must be limited to scope of the consent (where reasonable person under circumstances would believe it extends)

Question 22

What happens if a police officer’s mistake of law gives rise to reasonable suspicion for a seizure?

Answer 22

Valid if reasonable

Question 23

Requirements and rules for warrant exception:

Exigent circumstances – destruction of evidence

Answer 23

1. Applies even if exigency arose because officers knocked
2. Must have reason to believe evidence is being destroyed
3. Officers must not have created exigency thru an actual or threatened 4A violation

Question 24

When does a co-conspirator have standing to challenge the seizure of damaging evidence?

Answer 24

She must show that her OWN expectation of privacy was violated

Question 25

When may police use **deadly force** to apprehend a person?

Answer 25

When it is **reasonable** to do so under the circumstances

Question 26

What happens if an officer develops **PC** during an investigatory stop?

Answer 26

It becomes an **arrest**

Question 27

When may **roving patrol inside** US border **stop** car for questioning of occupants?

Answer 27

When officer **reasonably believes** car may contain illegal aliens – Mexican ancestry alone insufficient

Question 28

Where must a police officer's **reasonable suspicion** arise from?

Answer 28

Personal knowledge not needed; can be based on a flyer, police bulletin, or report from informant

Question 29

Requirements and rules for warrant exception: Stop and frisk

Answer 29

1. **Any constitutionaly valid arrest** made pursuant to **probable cause** 2. Limited to "**wingspan**" (person and areas into which he might reach to obtain weapons or destroy evidence) OR a **protective sweep** 3. For "**technological searches**," gov interests must **outweigh** person's privacy interests 4. **Contemporaneous in time and place** with arrest 5. Before **incarceration** or **impoundment**, may search arrestee's **personal belongings**

Question 30

Requirements for ∆ to **invalidate** a search warrant that is **sufficient to establish PC** on its **face** (going "behind the face" of the affidavit)

Answer 30

1. **False statement** was incuded in affidavit by affiant (the officer applying for the warrant) 2. Affiant **intentionally or recklessly** included that false statement AND 3. False statement was **material** to the finding of PC

Question 31

When can police conduct a **frisk** in an investigatory detention?

Answer 31

**Reasonable suspicion** that the detainee is **armed and dangerous**

Question 32

May police officers set up a roadblock for purposes of seeking **incriminating** information about the **drivers** stopped?

Answer 32

**No**, but they can do it to seek incriminating info about others

Question 33

Requirements and rules for warrant exception: Hot pursuit

Answer 33

1. Must be in hot pursuit of a **fleeing felon** 2. Scope as broad as may be **reasonably necessary** to prevent suspect from resisting or escaping 3. If search based on PC that starts in **public place**, may **pursue** suspect into **private dwellings**

Question 34

4A protections at border

Answer 34

Lower expectation or privacy, so **NO** probable cause, warrant, or reasonable suspicion required

Question 35

When can officers set up **roadblocks** to stop cars **without individualized suspicion** that the driver has violated some law?

Answer 35

Cars must be stopped on basis of some **neutral, articulable standard** (e.g. every other car) AND Must be designed to serve purposes **closely related to a particular problem pertaining to automobiles and their mobility** (e.g. drunk driving or transporting illegal aliens across a border)

Question 36

Requirements and rules for warrant exception: Emergency aid

Answer 36

Applies to emergencies that **threaten health or safety** if not immediately acted upon e.g. officers see someone injured or threatened with injury

Question 37

When may **roving patrol inside** US border conduct a **warrantless search**?

Answer 37

Only when the requirements of one of the **exceptions** to the warrant requirement are met

Question 38

What is the **probable cause** requirement for arrest?

Answer 38

At time of arrest, officer has within her knowledge **reasonably trustworthy facts and circumstances** sufficient to warrant an **RPP** to believe suspect has committed or is committing a crime for which arrest is authorized by law

Question 39

When may police **detain** the occupants of a permises during a search?

Answer 39

Pursuant to execution of **valid warrant** to search for **contraband**

Question 40

Requirements and rules for warrant exception: Evanescent evidence

Answer 40

Applies when evidence is **likely to disappear** before warrant can be obtained Reasonableness judged by **totality** of circumstances

Question 41

Exceptions to **announcement requirement** for execution of warrant

Answer 41

1. If officers have **reasonable fear** that **evidence will be destroyed** after they announce themselves, a **limited 15-20 second delay** before using force is reasonable 2. "**No knock**" entry possible if officer has **reasonable suspicion**, based on **facts**, that knocking and announcing would be **dangerous or futile** or that it would **inhibit the investigation** (judged case-by-case, no blanket exception for drugs)

Question 42

When are **dog sniffs** at a traffic stop lawful?

Answer 42

1. police officers **lawfully** stopped the car 2. do **not extend stop** beyond time necessary to issue ticket and conduct ordinary inquiries incident to such a stop 3. if it does extend an **otherwise-completed** stop, **reasonable suspicion** is rquired to complete a dog sniff Note: dog "alert" to presence of drugs can be basis of PC to search the car

Question 43

Requirements for warrant exception: Plain view

Answer 43

_Requirements:_ 1. Police **legitimately** on premises 2. **Discover** evidence, fruits, instrumenalities of crime or contraband 3. See such evidence in **plain view** 4. Have **PC to believe** that the item **_is_** evidence, contrabrand, fruit, or instrumentality of crime

Question 44

What does a warrant based on **info obtained from informers** require?

Answer 44

Based on **totality** of the circumstances Enough info to allow magistrate to make **common sense evaluation** of PC – no particular facts actually required

Question 45

What constitutes a stop?

Answer 45

A reasonable person would believe she is **not free to decline** the officer's requests or otherwise **terminate** the encounter Not enough to approach w/o detaining

Question 46

What is required for **reasonable suspicion** based on **informant's tips**?

Answer 46

**Indicia of reliability** sufficient to make officer's suspicion reasonable i.e. predictive information

Question 47

"Open Fields" Doctrine

Answer 47

Areas outside the "curtilage" (dwelling house and outbuildings) are subject to police entry and search – they are "**held out to the public**" and **unprotected** by 4A Court considers proximity to dwelling, steps used to protect from public view, etc.

Question 48

How long can an investigatory stop last?

Answer 48

As long as it takes to **confirm or dispel suspicions** Police must ask in **diligent** and **reasonable** manner

Question 49

What happens if an officer has a **dog sniff** around the entry of a home?

Answer 49

It constitutes a "search" and therefore requires a **valid warrant** or a **warrant exception**

Question 50

Requirements and rules for warrant exception: Stop and frisk

Answer 50

_Standards_: 1. To **STOP**: articulable and **reasonable suspicion** of criminal activity 2. To **FRISK**: officer **reasonably believes** person may be **armed and presently dangerous** For a valid stop of a **VEHICLE**: 1. May order driver out of car **w/o suspicion** of **criminal activity** 2. May search passenger compartment even if officer hasn't arrested occupant, provided search is **limited to those areas in which a weapon may be placed** or hidden and officer possesses **reasonable belief** occupant is dangerous

Question 51

Requirements for a valid warrant

Answer 51

1. Issued by **neutral and detached magistrate** 2. **Based on PC** established from facts submitted to magistrate by gov agent upon oath or affirmation 3. **Particularly describe** place to be searched and items to be seized

Question 52

What is required for a warrant to search a premises of a person **not suspected** of a crime?

Answer 52

**PC** to believe evidence of **someone else's** guilt (or something else subject to seizure) will be found

Question 53

Effect of automobile stop on passengers of vehicle

Answer 53

Constitutes a **seizure of passengers** as well

Question 54

What are the 2 tests to determine if an individual's 4th amendment rights have been implicated?

Answer 54

1. **Search or seizure** by gov agent of a constitutionally protected area in which the individual had a **reasonable expectation of privacy** 2. **Physical intrusion** by gov into a constitutionally protected area to **obtain information**

Question 55

When does a person have a **reasonable expectation of privacy**?

Answer 55

Based on the **totality of circumstances**, considering factors like ownership of the place and location of the item seized. Always, when: 1. she **owned or had right to possession** of the place searched 2. place searched was **in fact her home**, whether or not she had a right to possession of it; OR 3. she was an **overnight guest** of the owner of the place searched

Question 56

Standard for administrative inspections and searches

Answer 56

Warrant based on **general and neutral enforcement plan** which guards against selective enforcement