4th Amendment

Question 1

What are the Rights Protected Under 4th Amendment?

Answer 1

(1) Secure in their persons, houses, papers, and effects
(2) UNREASONABLE searches and seizures
(3) Warrants with oath, description of person, place, or thing

Question 2

What standard is required for a search AND seizure/arrest?

Answer 2

Probable Cause

Question 3

What standard is required for a stop?

Answer 3

Reasonable Suspicion

Question 4

When is a person seized?

Answer 4

Mendenhall and Hodari - when they are taken by physical force or a show of authority their movement is restrained (i.e. grabbed, pushed, threatened, etc) or they submit to authority

Question 5

What is a 4th Amendment search?

Answer 5

Physical trespass on one’s home or property or person or paper (Olmstead, Katz, Jones) OR invasion of reasonable expectation of privacy

Question 6

What is the reasonable expectation of privacy standard?

Answer 6

actual, subjective expectation that society is prepared to recognize as objectively reasonable

Question 7

What is an example of physical trespass?

Answer 7

Katz - bugging a public phone booth
Jones - putting a GPS tracking device on someone’s car and monitoring for 2 weeks
Carpenter - obtaining cell service location information from phone company for all time (monitors non-suspects too)
Kyllo - using a thermal imager to detect heat in defendant’s house
Almonor - pinging a cellphone
Jardines - dog sniffs on curtilage

Question 8

What is curtilage?

Answer 8

Hester 4-factor test:
(1) proximity to front door
(2) enclosure
(3) use of the area for intimate activity
(4) other steps taken to protect area of passerby people

Question 9

What is NOT a search?

Answer 9

Dunn and Oliver - entering open field/non-curtilage
Ciraolo, Dow Chemical, and Florida v. Riley - aerial surveillance on non-curtilage/open field
Greenwood - garbage
Place - dog sniff outside car

Question 10

What is third party doctrine?

Answer 10

If the thing being searched is owned by a third party who consents to the search, and then gives it up to the police, then the person does not have a REP or standing to sue for 4th A violation and the search is legal.

Question 11

What is the mosaic theory?

Answer 11

Moore-Bush - individual inquiries, each of which are not a search taken alone, may constitute a search when aggregated (e.g. long term instances of surveillance from a pole)

Question 12

When should a reasonable person believe they are allowed to leave?

Answer 12

Bostick and Mendenhall - Mere police questioning (e.g. can I see your ID? Can I check your bag? Can you follow me?)
Bostick and Whren - temporary detention on a bus or a car

Question 13

What are the requirements for a warrant?

Answer 13

(1) Issued by neutral and detached magistrate (Coolidge) capable of determining probable cause (Shadwick)
(2) Affidavit or oath supporting request
(3) Time period for execution (any time from 6 am to 10 pm for federal warrants)
(4) Must detail with specificity what is to be searched or seized (Andresen and Groh)
(5) Probable cause

Question 14

What is the knock and announce requirement?

Answer 14

Absent exigent circumstances, the police must knock and announce their presence before entering a residence to execute a search warrant (Wilson, Richards)

Question 15

What are the exceptions to the warrant requirement?

Answer 15

Exigent circumstances: preventing destruction of evidence and protecting people from physical harm
Probable cause: seeing crime in real time or plain view

Question 16

What are examples of exigent circumstances?

Answer 16

Hayden - hot pursuit of criminal Stuart - when a fight is actively happening
King - sound of people moving things after knock and announce
When someone is passed out drunk

Question 17

What is plain view doctrine?

Answer 17

Police can seize evidence in plain view without a warrant
Can include anything in plain view during execution of a warrant (i.e. warrant for child porn but find illegal drugs in plain sight or chasing after suspect and they drop something)
Must be immediately apparent that the seizure item is illegal (Arizona v. Hicks - cannot move the item to see if it is illegal contraband)

Question 18

What is an example of a mistake allowed under the warrant requirement?

Answer 18

Garrison - police objectively and reasonably believed warrant allowed them to search wrong apartment after warrant sent them to one apartment with two apartments

Question 19

What are the closely regulated industries that often do not use the warrant requirement?

Answer 19

Mining, alcohol, junkyards, weapons

Question 20

Do you need reasonable suspicion for border searches?

Answer 20

No - Martinez-Fuerte/Flores-Montano, Brignoni-Ponce

Question 21

Do you need RS or PC for a sobriety checkpoint?

Answer 21

No, and you don’t need a warrant either - Sitz

Question 22

When do you need RS for a checkpoint?

Answer 22

For general crime checks, but not when everyone is being checked

Question 23

Do you need PC or RS for jails?

Answer 23

No, anyone can be searched from routine booking through their time in the jail - Florence/MD v. King

Question 24

When do you need reasonable suspicion for a school search?

Answer 24

When you are individually only searching one student (higher REP) - Redding, BUT not when randomly searching - Acton

Question 25

Can states create statutes authorizing searches or arrests in a home without a warrant?

Answer 25

NO, this is a 4th A violation - Payton

Question 26

What do you need for an anonymous tip for a stop?

Answer 26

1) Indicia of reliability - Williams 2) Corroborated future behavior - White 3) Contemporaneous/eyewitness knowledge - Navarette

Question 27

What police behaviors do NOT constitute a stop?

Answer 27

Asking for ID, asking for name, asking to search luggage (Bostick/Hiibel)

Question 28

What amount of time is standard for a stop?

Answer 28

30-40 minutes - Sharpe

Question 29

What are the Drayton factors for a TOC analysis?

Answer 29

Application of force, intimidating movement, show of force, brandishing weapons, blocking exits, threats, commands, authoritative tone of voice

Question 30

Do officers have to tell people they have a right to refuse consent?

Answer 30

No - Bustamonte/Robinette/Drayton

Question 31

What is the co occupant consent rule?

Answer 31

A co-inhabitant can consent to a search of shared premises (when the other co-occupant is not physically present and refusing consent OR is arrested)

Question 32

What are the Burger criteria for a warrantless inspection?

Answer 32

(1) must be “substantial” governmental interest that informs the regulatory scheme pursuant to which the inspection is made (2) the warrantless inspections must be “necessary to further [the] regulatory scheme” (3) the statute’s inspection program must provide a constitutionally adequate substitute for a warrant

Question 33

What is the exclusionary rule?

Answer 33

When evidence is obtained illegally or in violation of the Constitution, it cannot be used at trial (applies to state and federal governments via Mapp)

Question 34

What are the Hodari requirements for a seizure?

Answer 34

The officer must show physical force OR the suspect submitted to the officer's "show of authority"

Question 35

What is the good faith exception to the exclusionary rule?

Answer 35

When the police is negligent or makes an honest/unintentional mistake, the exclusionary rule applies (i.e. Leon - judge makes a mistake on warrant, Herring/Evans - clerical mistake on warrant, Davis - relying on binding law at the time)

Question 36

What is the independent source exception to the exclusionary rule?

Answer 36

When a wholly separate line of investigation, shielded from information gathered from an illegal search, turns up the same evidence in a separate, lawful search, the exclusionary rule does not apply - Murray

Question 37

What is the Inevitable Discovery Exception?

Answer 37

Nix rule - if the police can show by a preponderance of the evidence that the information discovered would have been found by lawful means absent the violation, then the exclusionary rule does not apply

Question 38

What is are the Brown/Strieff factors for the Attenuation Exception?

Answer 38

When the causal link between the unconstitutional police conduct and the evidence is remote/has been interrupted by intervening circumstances: (1) temporal proximity, (2) presence of intervening circumstances, and (3) purpose and flagrancy of the official misconduct