4th Am Warrant Req & Exceptions Flashcards
governing rule for warrants (6 things it must include and 2 it need not)
o governing rule (4th Am): for a warrant to be valid:
(1) there must be probable cause to issue the warrant,
(2) the warrant must be issued by a neutral and detached magistrate,
(3) the warrant must be supported by an oath/affirmation,
(4) the warrant must particularly describe the place to be searched, AND
(5) the warrant must particularly describe the person/things to be seized
**must also specify the time period for its execution!
Need not include:
- supporting evidence for PC
- necessary conditions precedent
rule for generalized warrants
o rule: the “particular description” requirement of the 4th Am makes general warrants impossible and prevents the seizure of one thing under a warrant describing another (Andresen)
i.e. you can’t just authorize exploratory rummaging of a person’s personal belongings
**as to what is being taken, nothing is left to the discretion of the executing officer
requirements for the application/affidavit vs the warrant
o rule: the fact that the warrant application adequately describes the “things to be seized” does not save the warrant from facial invalidity, unless the application is properly incorporated by reference (Groh)
b/c warrants serve a high function and must be strictly regulated
b/c then there can be no written assurance that the magistrate found probable cause for each item mentioned in the affidavit
anticipatory warrants
o anticipatory warrants: obtaining a warrant based where you don’t currently have PC, but once a condition occurs (say a controlled drop of drugs), you will have PC
rule (Grubbs): or a conditioned anticipatory warrant to comply with the req of PC, it must be true that
• (1) if the triggering condition occurs, there is a fair probability that contraband or evidence of a crime will be found in a particular place, AND
• (2) that there is PC to believe the triggering condition will occur
officer’s affidavit supporting the anticipatory search warrant must provide sufficient info to support both of the above reqs
key note and 2 rules for knock and announce req
key note: knocking and announcing is part of the reasonableness inquiry under the 4th Amendment
• in some circumstances an officer’s unannounced entry into a home might constitute an unreasonable search/seizure under the Fourth Amendment
**SUPER HARD TO PROVE VIOLATION
rule: although a search or seizure of a dwelling might be unconstitutional if police officers enter without prior announcement (knock and announce), circumstances may also establish the reasonableness of an unannounced entry (Wilson)
• Examples include:
o under circumstances presenting a threat of physical violence,
o where a prisoner escapes from an officer and retreats to his dwelling
o where police officers have reason to believe that evidence would likely be destroyed if advance notice were given
rule: in order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion (less than probable cause required) that knocking and announcing their presence, under the particular circumstances, would be: (Richards)
• dangerous,
• futile, or
• that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence
• (this showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged)
**need not necessarily prove any of this to justify the amount of time you waited after knocking
rules for searching and detaining persons present during execution of a warrant
rule: as a general rule, the police cannot search persons who are present when a warrant is being executed just by virtue of the person being there (Ybarra)
rule: the police, however, may detain persons who are present when a warrant is being executed (Summers)
• an officer’s authority pursuant to Summers to detain incident to a search is categorical; it does not depend on the quantum of proof justifying a detention (in other words neither probable cause nor even reasonable suspicion is required) (Muehler)
• inherent in this authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention (Muehler)
• justifications for detention: (Bailey)
o (1) officer safety,
o (2) facilitating the completion of the search, and
o (3) preventing flight
• rule: the categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched – once an individual has left the immediate vicinity of a premises to be searched, detentions must be justified by some other rationale (Bailey)
o in closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including:
the lawful limits of the premises,
whether the occupant was within the line of sight of his dwelling,
the ease of reentry from the occupant’s location, and
other relevant factors
officer mistakes of law and fact
mistake of fact: the Court has recognized the need to allow some latitude for honest mistakes that are made by officers in the process of obtaining and executing search warrants (Garrison)
• the constitutionality of these mistakes is affected by whether they are objectively understandable and reasonable, looking at the conduct in the light of the info available to the officers at the time they acted
o ex) if the officers genuinely went into the wrong apt without knowing, that can be objectively okay, but once they realize that it is the wrong apartment, they must leave immediately
mistakes of law: same objective rule of reasonableness applied (Heien)
• ex) if an officer pulls a car over for what he thought was a traffic violation, but it turned out the activity was perfectly legal
5 key points for exigent circumstances (including definition and key points regarding the inquiry)
definition: exigent circumstances are those in which the urgent need for immediate action becomes too compelling to impose upon governmental actors the attendant delay that accompanies obtaining a warrant
the inquiry: whether the circumstances give rise to an objectively reasonable belief that there was a compelling need to act and insufficient time to obtain a warrant
the exigency of the circumstances is evaluated based upon the totality of the circumstances known to the governmental actor at the time of the entry
mere speculation is inadequate; rather, the government must rely upon specific and articulable facts and the reasonable inferences drawn from them
the manner and the scope of the search must be reasonably attuned to the exigent circumstances that justified the warrantless search, or the search will exceed the bounds authorized by exigency alone
hot pursuit exception (4 requirements)
requirements (Hayden):
• officers must have probable cause to believe that a crime has been committed and that the suspect is on the premises
• there must have been some form of a chase (“immediate and continuous pursuit”) of the suspect
• the suspect must be aware that he is being chased (otherwise there is no hot pursuit because he is not running away from anything)
• while a short time lapse before entry will not render the warrantless entry unconstitutional, a significant delay will
emergency aid exception
rule: where an officer has an objectively reasonable belief that an occupant is seriously injured or imminently threatened with such injury (“in need of immediate assistance”), warrantless entry is permissible to render emergency assistance to the injured or to protect an occupant from injury (Stuart)
• the officer’s subjective intentions in entering without a warrant are irrelevant (so the officer could have entered trying to discover evidence, not caring about the safety of the individuals inside or even believing that someone was actually seriously injured or in danger of such injury, instead simply hoping to see evidence in plain view, and the entry would still be constitutional)
preventing destruction of evidence exception (and exception to the exception)
rule: an objectively reasonable belief that the destruction of evidence is imminent provides officers with a basis for conducting an otherwise impermissible warrantless search to preserve the evidence (King)
• officers’ subjective intentions in conducting a warrantless entry are irrelevant and the danger of destruction of evidence having arisen in response to law enforcement’s actions, even where such a reaction was reasonably foreseeable, will not invalidate a warrantless entry
• exception: if the exigency arises in response to an actual or threatened 4th Amendment violation [difference between police announcing that they are at the door (permissible) and police saying that they are breaking the door down and coming in (impermissible)]
3 rules for application of “destruction of evidence” exception to drunk driving
• rule: in those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so (McNeely)
• rule: a breath test (less intrusive), but not a blood test (more intrusive), may be administered as a SITLA for drunk driving (Birchfield)
o **as in all cases involving reasonable SITLA, a warrant is not required
• rule: when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment (Mitchell)
o however, an exception may arise where the person’s blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties
o heavy presumption against unreasonableness
protecting officer safety exception
rule: the officers must have an objectively reasonable basis for concluding that there is an immediate need to act to protect themselves and/or others from serious harm (you can probably cite to Meeks for this)
community caretaker exception
governing rule: the government must show that (McCormick – TN case):
• (1) the officer possessed specific and articulable facts which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and
• (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need
• (in Tennessee, officer’s subjective intentions are irrelevant to community caretaker analysis, however – “courts must meticulously consider the facts and carefully apply the exception in a manner that mitigates the risk of abuse”)
• **undecided whether this exception applies to the home
plain view exception
framework:
• (1) the officer was where he or she was legally entitled to be when seeing the item in plain view,
• (2) the items incriminating nature must be “immediately apparent,” AND
• (3) the officer has a lawful right to access the object itself
3 ancillary rules for plain view exception
rule: law enforcement needs probable cause to actually seize the item (Hicks)
• i.e. you can’t move the item to confirm its incriminating nature without PC
rule: an officer’s discovery of incriminating evidence in plain view from a lawful vantage point is an exception to the warrant req even if the officers didn’t discover the evidence inadvertently (Horton)
rule: the plain view exception also applies to other sensory perceptions such as plain touch and plain smell (Dickerson)
• however if you are doing something like patting down for a gun and you find drugs, but their nature is not immediately apparent, then you can’t search (so if you feel a baggy of something but its not immediately apparent that its drugs, you can’t go and pull it out because that becomes an evidentiary search)
**remember that under the warrant req, once you have found what you came for, you need to stop
automobile exception (5 rules)
governing rule: law enforcement may conduct a warrantless search of an automobile or other moveable vehicles (boat, plane, etc.) if officers have probable cause to search the vehicle
• key distinction from homes – cars are mobile, so all you need is PC, not a warrant (b/c it’s hard to pin down juri) (Carroll)
rule: this exception applies even with cars in police yards (regardless of whether it would actually be moved) (Chambers)
rule: when the police lawfully stop a vehicle, they may order the driver (Mimms) and passengers out of the vehicle (Wilson) – this is automatic not even reasonable suspicion is required
rule: the police may conduct a pat down search for weapons on persons pulled over in traffic stop if the police have reasonable suspicion that the person subjected to the frisk is armed and dangerous (Johnson)
rule: the automobile exception does not permit the government to enter a home or the curtilage to search a vehicle therein without a warrant (Collins)
automobile exception (rule for searches of containers)
**searches of containers in automobiles: law enforcement can engage in warrantless searches of containers in vehicles if the officers have probable cause to search either the container or the vehicle (Acevedo)
• if the container is not in the vehicle, then officers cannot engage in a warrantless search of the container even if they have probable cause to search the container but can seize the container while they attempt to obtain a warrant if there are exigent circumstances
• **takes away pre-Acevedo distinction between PC to search car and PC to search items within the car (there is still tension because you can’t stop someone on the street to seize a backpack, but when they put it in their car its free game)
• rule: where the government has probable cause to search a vehicle, they can search not only containers therein belonging to the driver/owner but also passengers in the vehicle even if there is no reasonable suspicion or probable cause as to the passengers in particular (Houghton)
search incident to arrest exception (3 rules)
governing rule: officers may conduct a warrantless search of the arrestee as part of a valid search incident to arrest (Chimel)
• officers may also conduct a warrantless search of the arrestee’s grab area – the area from within which the arrestee might have obtained either a weapon or evidence – as part of a valid search incident to arrest
rule: the level of dangerousness of the crime or likelihood of discovering evidence of crime is irrelevant in determining whether the warrantless search was constitutional (Robinson)
- **the validity of warrantless searches incident to arrest do not depend on the probability that weapons or evidence will be found on the suspect in a given case
- but law enforcement officers have to actually make a custodial arrest of the person to conduct a search incident to arrest not just be authorized to arrest the person (Knowles)
rule (timing): the authority for a SITLA disappears when there is no longer any danger that the arrestee might gain access to the ppty to seize a weapon or destroy evidence (Chadwick)
rule: a warrant is generally required before search of info on a cell phone even when the phone is seized incident to arrest (Riley)
• **certain exigencies may justify warrantless search, like: hot pursuit, preventing destruction of evidence, assisting injured persons, etc.
search incident to arrest automobile exception
governing rule: a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search OR (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest (Gant)
- the court will analyze the reasonableness of cops trying to evade this rule by keeping the suspect near the car – it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains
- **compare w automobile exception: so under (2), you can only search the car for evidence of the crime for which the arrest was made, however, if you find something on the arrestee’s person that gives you PC to search the car (like you find drugs and now you have PC to search for more drugs), you can search the car under the automobile exception
- **circuit split on Gant’s application outside the vehicle context
inventory search exception (2 rules)
rule: when police have properly taken a vehicle into their custody, they may conduct an inventory search pursuant to an established standard inventory policy even without a warrant or probable cause (Opperman)
• • **department regulations (if reasonable) will typically be given judicial deference – but the officer must not exceed the scope (i.e. will likely also be invalidated if you do more than just search and seize – if you seize contents of a vehicle and test them)
• inventory searches have been invalidated where law enforcement does not maintain the inventory sheets and/or provide a safe place for storage of valuables or where the inventory search is discretionary rather than standard
rule: police may search any article or containers on an arrestee as part of a routine established inventory procedure that is incident to incarcerating a lawfully arrested person even without a warrant or probable cause to support the search (Lafayette)
**note: if you have PC upon stopping the vehicle of some criminality, you can search it yourself, and there is no timing req, so you could search it back at the station without putting it into the police yard b/c you have sufficient PC – i.e. this type of personal search would not be in violation of procedures
protective sweep exception
governing rule: lacking probable cause or reasonable suspicion to believe that any danger is posed, law enforcement may in effectuating an arrest, nevertheless, as part of a protective sweep on private premises, look in closets and other spaces immediately adjoining the place of arrest from which an attack could occur (Buie)
• to extend the protective sweep further, law enforcement must have reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene (i.e. you can’t search a washing machine because no individual could be hiding in there)
• **protective sweeps are not full searches of the premises and can only extend to a cursory inspection of those spaces where a person may be found and the sweep can last no longer than is necessary to dispel the reasonable suspicion of danger and no longer than it takes to complete the arrest and depart from the premises
consent exception
governing rule: when the subject of a search is not in custody and the government attempts to justify a search on the basis of his or her consent, the government bears the burden of proof to demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion (Schneckloth)
• voluntariness is a question of fact to be determined from the totality of the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent
**there is no Miranda equivalent to consent searches
the scope of authority to search extends only as far as is authorized by the consent
consent to search can be revoked
consent exception rules for co-occupants and other 3ps
rules for co-occupants and other 3ps:
• a co-occupant can consent to a search of shared areas of a dwelling or shared property, but not to property that is not his or hers
• even if a third party does not have actual authority to voluntarily consent to the search of the property, real or personal, a search will still be valid where the third party reasonably appeared to law enforcement to have apparent authority and the search is within the scope of the third party’s apparent authority (Randolph)
o exception: a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him or her
**limited to situations in which the objecting occupant is physically present (so the objecting party can’t stop the search if he is not there – even if his absence is due to his arrest by police - but the arrest must be a valid one!)
exception to the exception: where the people living together fall within some recognized hierarchy, like a parent and a minor child at private residence or barracks housing military personnel of different grades, the objection of a physically present co-occupant who is lower in the hierarchy will not render the search unreasonable
