4th Amendment

Question 1

Opening Paragraph

Answer 1

The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. In order for the Fourth Amendment protections to apply, there must be several factors present. First, there must be government action. Here, Specific government actors are government actors and acted in their official capacity as such. Because there is a state (Specific State) government actor, the Fourth Amendment is applicable to the states through the 14th Amendment. In addition, there must be either a search or seizure to trigger the Fourth Amendment’s protections. Warrantless searches and seizures are per se unreasonable unless they fall within one of the well-delineated exceptions to the warrant requirement. In addition, the remedy for a violation of the Fourth Amendment is exclusion of the evidence unless an exception to the Exclusionary Rule applies.

Question 2

4th Amendment Requires:

Answer 2

1. Government action with US [if not, no 4th Amendment issue]
2. Action must qualify as “search”/”seizure” [if not, no 4th amendment issue]

Question 3

Government Actor

Answer 3

The constitutional rules in criminal procedure provide protection against the actions of government officials or those who act as agents or instruments of the government; the constitutional rules provide no protection against private citizens acting without government encouragement.

1. Fed Gov. Actor/State Actor
2. Additional Categories of potential gov actors:
   a. Private paid police, but only if they’re deputized with power to arrest
   Common e.x., campus police at public universities
   Public school officials (principals, vice-principals)

Question 4

Searches

Answer 4

A governmental invasion of a person’s constitutionally protected reasonable expectation of privacy.

Question 5

Searches Require:

Answer 5

1. warrant (need probable cause)
2. Warrant exception with no warrant (might need PC or reasonable suspicion depending)

Question 6

Katz Test

Answer 6

1. Did the defendant manifest a subjective expectation of privacy?
2. If so, does society recognize that expectation of privacy as reasonable? (objective)
   If yes to both, police perform a search within the meaning of the 4th Amendment.
   Ex. When police electronically listen and record person’s phone calls, it violates privacy which he justifiably relied (which constitutes search & seizure within meaning of 4th Amend)

Question 7

Jones Test

Answer 7

Is there a government intrusion on a constitutionally protected area (person, home, papers, effect) for the purpose of obtaining information?
ex. Gov installation of GPS on person’s vehicle (effect) and use of that device to monitor vehicle’s movement constitutes search.

Question 8

Open Fields

Answer 8

Open field not a person’s/houses/papers/effects, so gov intrusion to open field not an unreasonable search according to 4th Amendment, even into privately owned open fields. Individual can’t demand privacy for activities conducted outside in fields, except in curtilage (area is so intimately tied to home should fall under 4th Amendment protection).

Question 9

Curtilage determination factors:

Answer 9

Proximity of area claim to be curtilage to the home.

Whether area is included within enclosure surrounding home.

Nature of use to which area is put.

Steps taken by resident to protect area from observation by passerby

Question 10

Oliver v. US

Answer 10

D. had ‘no trespassing’ signs, there was a locked fence, and the field wasn’t in view of the public if you weren’t on his property.

Court does Katz test, but found no objective reasonable expectation of privacy. No search!

Question 11

U.S. v. Dunn

Answer 11

Is the barnyard (50 yards from the fence around the house) part of the curtilage (home) that would be protected by 4th?

Court found no curtilage but also said observation was from an open field-never entered barn. Warrantless naked-eye observation of protected places is not unconstitutional.

Question 12

Aerial Surveillance

Answer 12

Aerial observation of a home’s curtilage is not a search if the curtilage is visible from the public navigable airspace. An individual’s expectation that his curtilage or garden is protected from such observation is unreasonable and is not an expectation that society is prepared to honor.

Exs.California v. Ciraolo (1986)
1. Curtilage? Surveillance at 1000 feet of fenced in backyard without warrant.
2. Katz test: no objective reasonable expectation of privacy, because evidence was seen by naked eye.

Florida v. Riley (1989)
1. Surveillance of interior of a partially covered greenhouse in a residential backyard (curtilage) from a helicopter flying at 400 feet is not a search. The info used to get a warrant.
2. Katz test: no objective reasonable expectation of privacy, because evidence was seen by naked eye.

Question 13

Thermal Imaging

Answer 13

When police use a thermal imager or a similar device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. Thermal imaging is more than the naked eye.

Ex. Kyllo v. US (2001)
1.Thermal imaging of a house from the public street to detect heat is a search. Info (with tips and utility bills ) used to get a warrant.
2.Katz test: Had both subjective and objective expectation of privacy. Yes search.

Question 14

Searches of Trash

Answer 14

A search does not occur when police gather and sort through an individual’s trash left for collection outside the curtilage of a home. Because trash left for collection on a public street is readily accessible to others, including the garbage collector, it is not objectively reasonable to expect that its content will remain private.

Ex. California v. Greenwood (1988)
1. Police look through trash without warrant.
2. Katz test: subjectively yes, but objectively no. No search.
3. Knowingly expose to public isn’t protected.

Question 15

Observation & Monitoring Public Behavior (Trackers/Beepers)

Answer 15

1. A search does not occur when police install an electronic tracking device on property that does not yet belong to the defendant and then use the devise, once in the defendant’s possession, to reveal information regarding his public movements that could also be obtained through ordinary visual surveillance. A person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.
2. A search does occurs when police use an electronic tracking device to obtain information about the interior of a private residence that they could not have obtained by observation from outside the curtilage. Private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is one that society is prepared to recognize as reasonable.

Ex. US v. Knotts (1983)
1. Monitoring of signal of beeper (tracker) placed in container transported to cabin by driving on public roads (not in cabin).
2.Katz test: No subjective or objective expectation of privacy. No search.
3. No search–beeper surveillance is like following vehicle on public roads–knowingly exposing

Ex. US v. Karo (1984)
1. Tracker installed into either with consent of informant/owner of ether and delivered to the D. Tracker was taken into Karo’s home, other residences, and relatively private commercial structures.
2. Katz test: Had both subjective and objective expectation of privacy. Yes search.

Question 16

Observation & Monitoring Public Behavior (Pen Register)

Answer 16

The use of a pen register installed on telephone company property to record the numbers dialed from an individual’s telephone is not a search. An individual does not generally expect the numbers he dials to remain secret, nor is it reasonable to expect privacy in information voluntarily disclosed to third-party telephone companies whose equipment completes the call.

Ex. Smith v Maryland (1979)
1. Pen register (installed central telephone facility and records all numbers dialed from a specific phone).
2. Katz test: No subjective or objective expectation of privacy. No Search.
3. People know numbers are tracked no expectation of privacy in information voluntarily turned over to 3rd parties.
1986 law: Requires court order or exigent circumstances (track longer than 48 hours)

Question 17

Observation & Monitoring Public Behavior (Cellular Location)

Answer 17

Carpenter v. US (2018)

Police obtained cellular location info for 127 days. Accesses historical cell phone records that provide comprehensive chronicle of user’s past movement.

Gov’s acquisition of cell-site records was a search.

Info is revealing with depth, breadth, and comprehensive reach. Inescapable and automatic nature of its collection, regardless of it being gathered by 3rd party (No 3rd Party Doctrine).

Tracking person’s movements and location through extensive cell-site records is far more intrusive than precedents might have anticipated.

Question 18

Observation & Monitoring Public Behavior (Financial Records)

Answer 18

No reasonable expectation of privacy since others have seen them. Government requesting docs from bank isn’t search.

California Bankers Ass’n v. Shultz (1974)
1. Some states find expectation of privacy in their state constitution
2. Laws do protect some information (Right to Financial Privacy Act)
3. No Search.

Question 19

Dog Sniffs (Luggage)

Answer 19

Use of drug detection dog to sniff traveler’s luggage in public airport doesn’t constitute a search.

Illinois v. Caballes (2005)
1. Reasonable, articulable suspicion needed to justify dog sniff during legitimate traffic stop?
2. Katz test: [not walked through exactly] No subjective or objective expectation of privacy. No search.
3. No legitimate privacy interest in possessing contraband.

Question 20

Dog Sniffs (Traffic Stop)

Answer 20

Use of drug detection dog to sniff individual’s vehicle during lawful (justified at its inception) traffic stop doesn’t constitute search under 4th Amendment as long as sniff doesn’t prolong traffic stop. If sniff occurs after completion of a lawful traffic stop, then it’s a unlawful seizure under 4th Amendment.

Rodriguez v. US (2015)
1. Dog sniff after completion of traffic stop without additional justification?
2. Unlawful seizure.

Question 21

Dog Sniff (Houses)

Answer 21

Use of drug detection dog to investigate home and its immediate surroundings is a search. Home and curtilage are constitutionally protected areas, and bringing drug dog onto premises is an unlicensed physical intrusion.

Florida v. Jardines (2013)
1. On unverified tip, police take dog to front porch of home where he alerts.
2. Held: Gov’s use of trained police dogs to investigate home and its immediate surroundings is a “search”.
3. Purpose of police entering the porch was to conduct a search, so violated 4th Amendment.

Question 22

Seizure Definition

Answer 22

1. Exercise of control by the government over a person or thing.
2. Seized when reasonable person wouldn’t feel free to leave. Or reasonable person would feel free to decline officer’s request or otherwise terminate encounter. [objective standard looked at through totality of circumstances]
3. Not seized till actually yields to officer’s physical force/show of authority. Not seized during police chase.

Question 23

Factors Indicating Seizure

Answer 23

Location of questioning
Several officers
Display of weapons
Physical touching
Language/tone of voice

Also, government has burden of proof

Question 24

Arrests

Answer 24

Arrest = seizure (severe restriction on an individual’s freedom
Probable Cause: present when, at the time of the arrest, the officer has within his knowledge reasonably trustworthy facts and circumstances sufficient for a reasonably prudent person to believe that the suspect has/is committing a crime.

Question 25

Warrants

Answer 25

requires probable cause arrests without warrant require probable cause

Question 26

Home Arrests

Answer 26

Suspects' home - arrest warrant required, but not search warrant Third party's home - arrest warrant and search warrant required

Question 27

Stops = Seizure

Answer 27

1. Stop is an investigative detention lasting no longer than is necessary to effectuate the reason for the stop. Duration matters but no rigid measure. 2. Requires reasonable suspicion that criminal activity is afoot/occured. 3. Passengers in cars usually seized along with drivers 4. Terry stops and Frisks

Question 28

Casual Encounter isn't Seizure

Answer 28

1. Police officers may approach individuals at random on the street, in airports, on buses, and in other public places to ask them questions and to request consent to search their persons or luggage. Places police can typically have casual encounters: 1. airports 2. street encounters 3. bus sweeps

Question 29

What requires a warrant?

Answer 29

1. Warrant if arrest made in home unless exception applies (need probable cause to get warrant) a. routine felony arrest in suspect's home Warrant exception: warrantless 1. Might need probable cause or reasonable suspicion depending. 2. For arrest made in public for felony 3. If police see person commit a misdemeanor (even if no jail time punishment)

Question 30

Probable Cause (Search)

Answer 30

Exists where the facts and circumstances within an officer’s knowledge and of which she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed and that the evidence bearing on that offense will be found in the place to be searched.

Question 31

Probable Cause: Seizure (arrest)

Answer 31

Probable cause for an arrest exists where the facts and circumstances within an officer’s knowledge and of which she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person whom the officer intends to arrest.

Question 32

Probable Cause: Totality of Circumstances (look for): [includes tips (alone enough for reasonable suspicion (not generalized tip), but not p/c)]

Answer 32

a. A reliable source of information, including the source’s basis of knowledge. (Sufficient indicia of reliability) b. Detailed information suggestive of criminal activity. c. Verification or corroboration of the information by the police (or others). d.) Officer's opinions Not rigid requirements, but considered collectively

Question 33

Probable Cause Objective Standard

Answer 33

Focused on what a “reasonable officer” would believe with the same knowledge and information. The subjective beliefs and motivations of any particular officer are not relevant to the probable cause determination. Mistakes of law are permissible as long as they're reasonable.

Question 34

Probable Cause Multiple Suspects

Answer 34

For crimes which could have been committed jointly or singularly, an arrest of all is okay and cop doesn’t need to be certain what type it was when arresting. If it's a singular crime (driving drunk) then you can’t arrest multiple people for the single crime

Question 35

Dog Sniff & Probable Cause (Reliability) [Florida v. Harris]

Answer 35

Whether drug detection dogs reliable, question is whether all facts surrounding dog's alert, viewed through lens of common sense, would make reasonably prudent person think that search would reveal contraband or evidence of crime. Evidence of drug detection dog's satisfactory performance in certification or training program can itself provide sufficient reason to trust his alert; if bona fide organization has certified a dog after testing his reliability in controlled setting, court can presume, subject to any conflicting evidence offered, that dog's alert provides probable cause to search.

Question 36

Warrants

Answer 36

Probable cause required to obtain warrant. Not proof beyond reasonable doubt (criminal guilt) or preponderance of the evidence (civil liability), but less as a "fair probability" of criminal activity.

Question 37

How to request a warrant

Answer 37

Affidavit submitted must include info that provides basis for concluding there's probable cause. Whether admitted in written form, orally, or electronically, statements made by police to a magistrate in support of an application for a warrant must be sworn and must be sufficient to establish probable cause. An insufficient statement or affidavit in support of a warrant cannot be rehabilitated by later sworn testimony concerning information known to the police—but not disclosed to the magistrate—at the time the application for the warrant was under review. Request for warrant can be in person/by phone

Question 38

Validity of a Warrant

Answer 38

Issued by Neutral & Detached Magistrate Not necessarily need be lawyer or judge, but must be capable of determining probable cause and must not have financial interests/connections to law enforcement that would compromise his independence. Based on probable cause (Particularly) Identifies person/property to be searched/seized Reasonable particularity; No general warrants (some general language okay as long as language construed narrowly) Such that an officer can reasonably ascertain and identify the location or items intended. If insufficiently particular, may be saved by adequate description in affidavit/application but only if warrant uses appropriate words of incorporation and the supporting affidavit accompanies the warrant Designate magistrate for return Warrant generally good for 14 days Should be served during "daytime" (6 a.m.- 10 p.m.) Supported by oath/affirmation

Question 39

Search Warrant

Answer 39

Fair probability that specified items sought are evidence of criminal activity & those items are presently located at specified place described in application.

Question 40

Arrest Warrant

Answer 40

Fair probability that a crime was committed & that person to be arrested committed the crime.

Question 41

Anticipatory Warrant

Answer 41

Affidavit says search will occur only if certain events take place: (must have both) 1.) There's probable cause to believe triggering condition will occur Doesn't matter if item isn't at location at time of warrant issuance, as long as it will be there when search warrant is executed. 2.) If triggering event occurs, there's a fair probability that contraband/evidence of a crime will be found in particular place.

Question 42

Executing Warrant (Treatment of People Present During Execution)

Answer 42

Police can detain persons present on premises while executing search warrant (those within immediate vicinity of premise to be searched) , and if necessary for officer safety or other legitimate reasons, detainment (possibly handcuffs) may last for several hours. In absence of individualized suspicion of wrongdoing, police can't search person present on premises while executing search warrant of premise.

Question 43

Executing Warrant (Knock and Announce)

Answer 43

Absence exigent circumstances, police must knock and announce their presence before entering residence to execute search warrant. Evidence discovered following a violation won't be suppressed under exclusionary rule. To justify "no-knock" entry, police must have reasonable suspicion to knocking and announcing their presence, under particular circumstances, would be dangerous/futile or it would inhibit effective investigation of crime by allowing destruction of evidence (typically drug cases)

Question 44

Executing Warrant (Mistakes in Execution of Warrant)

Answer 44

Mistake in execution of valid warrant doesn't violate 4th Amend & doesn't require suppression of evidence discovered if mistake was objectively reasonable and understandable.

Question 45

Exclusionary Rule

Answer 45

Under the exclusionary rule, evidence obtained in violation of the Constitution is generally excluded from the defendant’s criminal trial and cannot be used to establish guilt. Should be invoked only for deliberate, reckless, or grossly negligent conduct by the police. Minor mistakes resulting from ordinary and isolated negligence, including those made by police personnel, judges, or court employees, should not trigger the exclusionary rule. Not applicable when police conduct a search in objectively reasonable reliance on binding judicial precedent, even when the law is later changed while the case is pending on appeal.

Question 46

Who Can Challenge Evidence? (Exclusionary Rule)

Answer 46

1. Crim Defendant a. Can't challenge a search and claim the protection of the exclusionary rule simply because she was “aggrieved” by the search or was legitimately on the premises. b. Can challenge a search or seizure and invoke the exclusionary rule only if the police violated his or her own legitimate expectation of privacy under the 4th Amendment 2. Visitors in Homes a. Overnight social guest has legitimate expectation of privacy in his host’s home. Overnight social guest can challenge a search of the home he is visiting and may claim the protection of the exclusionary rule. b. Short-term business guest doesn't have a legitimate expectation of privacy in his host’s home. Accordingly, a short-term business guest cannot challenge a search of the home he is visiting and may not claim the protection of the exclusionary rule. i. Can still object to a search of his own person or effects located within the house because he has a legitimate expectation of privacy in his person and personal effects that is independent of any expectation of privacy he may have in his host’s house. 3. Passengers in car (can challenge seizure) a. Car passenger—one who has neither a property or possessory interest in the vehicle—does not have a legitimate expectation of privacy in the car or in areas such as the trunk or glove compartment. Accordingly, the passenger cannot challenge a search of the car in which he is riding, nor can he claim the protection of the exclusionary rule. i. May still object to a search of his own person or effects located within the vehicle because he has a legitimate expectation of privacy in his person and personal effects that is independent of any expectation of privacy he may (or may not) have in the vehicle itself. ii. All occupants of a car are “seized” when the car is stopped by police. Thus, a passenger may challenge the constitutionality of the traffic stop, and if the stop is found to be illegal, evidence that was discovered during the search of the vehicle may be declared inadmissible as “fruit of the poisonous tree.” c. A person in lawful possession of rental car has a reasonable expectation of privacy in it, regardless of whether he is listed as an authorized driver on the rental agreement

Question 47

Exceptions to Exclusionary Rule (Independent Source)

Answer 47

Allows admission of evidence that is discovered by lawful means wholly independent of and untainted by nay constitutional violation. If information or evidence obtained during an unlawful search prompts the police to apply for a warrant or is used by the police to secure a warrant, the independent source exception does not apply.

Question 48

Exceptions to the Exclusionary Rule (Inevitable Discovery)

Answer 48

Allows admission of illegally obtained evidence if the prosecution can prove, by a preponderance of the evidence, that the illegally obtained evidence would have ultimately or inevitably been discovered by lawful means. The prosecution is not required to prove the absence of bad faith by police in order to invoke the inevitable discovery exception.

Question 49

Exceptions to the Exclusionary Rule (Inadequate Casual Connection [Attenuation of Taint])

Answer 49

1. If there is an inadequate causal connection between the illegal conduct of the police and the disputed evidence, or if the connection between the unlawful conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. Factors relevant to this determination include: a. The temporal proximity between the illegal police conduct and the evidence. (Passage of time) b. The presence of intervening circumstances. c. The purpose and flagrancy of the official misconduct. 2. Miranda warnings do not always, by themselves, purge the taint of an illegal arrest, rendering an arrestee’s subsequent statement admissible. In order for the causal chain between the illegal arrest and the subsequent statement to be broken, the statement must not only meet the 5th Amendment standard of voluntariness, but it must also be sufficiently an act of free will to purge the primary taint of the illegal arrest. 3. When police make a warrantless inside a suspect’s home in violation of Payton v. New York, any evidence discovered or statements made by the suspect inside the home are inadmissible. But where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the state’s use of a statement made by the suspect outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton. 4. The exclusionary rule should be invoked with much greater reluctance to exclude live witness-as opposed to an inanimate object—discovered as a result of a constitutional violation, particularly where the testimony by the witness is voluntarily given and is not coerced or induced by official authority.

Question 50

Exceptions to the Exclusionary Rule (Good Faith Exception & Negligent Mistakes)

Answer 50

1. Doesn't bar the admission of evidence obtained by police who, in good faith, reasonably rely on a warrant that is later found to be unsupported by probable cause or otherwise technically deficient. The officer’s reliance on the magistrate’s probable cause determination and on the technical sufficiency of the warrant must be objectively reasonable. 2. The officer will have no reasonable grounds for believing that the warrant was properly issued and the good faith exception will not apply in any of the following circumstances: a.) The magistrate or judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. b.) The magistrate or judge issuing the warrant wholly abandoned his judicial role. c.) The warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. d.) The warrant is facially deficient—in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid. 3. The exclusionary rule should be invoked only for deliberate, reckless, or grossly negligent conduct by the police. Minor mistakes resulting from ordinary and isolated negligence, including those made by police personnel, judges, or court employees, should not trigger the exclusionary rule. 4. The exclusionary rule does not apply when the police conduct a search in objectively reasonable reliance on binding judicial precedent, even when the law is later changed while the case is pending on appeal

Question 51

Exceptions to the Exclusionary Rule (Knock and Announce Exception)

Answer 51

In the absence of exigent circumstances, police must knock and announce their presence before entering a residence to execute a search warrant (unless it is a no-knock warrant). Evidence discovered following a “knock and announce” violation will not, however, be suppressed under the exclusionary rule.