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Flashcards in 4th Amendment Deck (73):

Does the 4th Amendment regulate private action?

No, unless that private citizen is acting as an instrument or agent of the government.


What factors does the court look at to determine if a private citizen is acting as an instrument or agent of the government?

1. Whether the government knows of or acquiesces in the private actor's conduct;
2. Whether the private party intends to assist LEOs at the time of the search; and
3. Whether the government affirmatively encourages, initiates, or instigates the private action.


When does a "search" occur?

When the government intrudes on a person's REP.


What is the test for REP?

1. The individual exhibited an actual (subjective) expectation of privacy; and
2. The expectation is one society deems reasonable.


Does a physical intrusion (blood, saliva, urine) of a peson require a warrant?



Does a breathalyzer, or removing anything from beneath the skin, require a warrant?



Does handwriting, voice samples, or fingerprints require a warrant?



Is there REP in the exterior of a vehicle?



Does Bobby have REP in his vehicle's VIN?



Is there REP in the interior of a vehicle?



Does a Passenger have any REP to the inside of a vehicle?

No, only in their own belongings


Bobby rents a vehicle, does he have REP in that vehicle?



Joe is away, does he have REP in his home?



Jill is spending the night at Joe's home, does she have a REP?

Yes, overnight guests have REP


Bob is at Joe's house for a party, does he have REP in Joe's home?

No, social guests don't have REP


Bob is hanging out at Joe's home for the day, and has a key Joe gave him. Does Bob have REP in Joe's home?

Yes, a guest has REP if the guest has free access and is authorized to control the home at times


A plumber is working on Joe's sink, does he have REP?

No, commercial visitors don't have REP.


Jill rents an apartment, does she have REP in the hallway she shares with her neighbors?

No, there is no REP in common areas


Bob has a metal lunch box, does he have REP in the contents of that lunch box?

Yes, REP in own containers that don't show what's inside


A sealed package Bob is sitting on the table, does he have a REP for the contents of that package?

Yes, REP in letters and other sealed packages


A FedEx employee opens a box sent to Bob, and searches about half way down into the box. Can the government now search in the box as well?

Yes and No.

1. The Govt. can use now non-private information
2. Govt. can search to the same extent as the FedEx (private) person did.
3. Bob still has REP in the non-searched areas of package


What elements help determine what is curtilage?

* Proximity of the claimed curtilage to the home itself;
* Whether the area is included within a single enclosure surrounding the home;
* The use of the area; and
* The steps taken by the resident to protect the area from observation by people passing by


Is there REP in curtilage?



Is there REP in open fields?



What is the definition of open fields?

Unoccupied or undeveloped area outside of the curtilage


Is there REP in buildings on open fields?



What are the 5 factors that determine if a government employee has REP?

1. Prior notice that no REP exists
2. Common practices and procedures of the employer
3. Openness and accessibility of the area or item in question
4. Whether the position has security requirements
5. Whether the employee has waived REP in the workplace


Jill's supervisor goes through her desk drawer looking for a stapler, is this a violation of Jill's REP?

No, a government supervisor may search a employee's REP space while looking for work-related items, files, or materials


Jill's supervisor believes she stole the copy machine. Can he search Jill's really small desk drawer?

No. A supervisor may search a employee's REP space if reasonable suspicion of employee misconduct exists. However, he supervisor may only search the areas where the evidence of misconduct could be located


Jill stole a bowling ball from the local bowling alley, can her supervisor search her desk for the bowling ball?

No, Jill's REP space may not be searched for criminal misconduct unrelated to work, without a warrant or an exception


John throws away his old bowling ball, does he still have REP in the bowling ball?

No, there is no REP in abandoned property - when, through word or deed, a person indicates an intention to permanently disavow any interest in an item or place


Bobby tells the policeman that the suitcase he carried into the terminal is not his. Does he still have REP in the suitcase?

No, Bobby has abandoned his REP by denying knowledge or ownership of the item


Does Joe still have REP in the garbage he left on the street?



Joe has garbage in a can, next to his back door, but within his back yard. Does he still have REP in the garbage?

Probably. The courts will look at whether there was public access to the garbage, and how close the garbage was placed to the home (within the curtilage)


Bill sends a letter through USPS, does he have REP in the letter?

Only if the letter was sent First Class or higher


Is there REP in the outside of letters and packages?



Bill sends a letter through UPS, does he have REP in its contents?

Yes, there is REP in letters and packages sent through private carriers.


A police dog sniffs a container sitting on the sidewalk next to Joe. Does the dog's sniffing violate Joe's REP?

No, a dog sniffing a container, located in a public place, does not violate REP.


In regards to sensory enhancement, the court looks at what to elements?

1. The sophistication of the device; and
2. Whether the activity that was viewed occurred in public or in private


Officer Bill uses a telescope to look inside Joe's house, is that okay?

No. Binoculars and telescopes are generally okay, unless used to observe conduct taking place inside a person's residence


Officer Bill uses a flashlight to see inside a vehicle. Is that okay?

Yes. Flashlights are not considered a search. And a person does not have REP in darkness, when the item would be visible in the light.


Can Officer Bill use thermal imaging to view inside a home?

No, REP against use of thermal imaging to detect heat from inside a residence


A police pilot flys 30 feet over Joe's backyard to get a view as to what Joe is growing. Does that violate Joe's REP?

Yes, Officers must operate in navigable airspace, same as private persons


To make an investigative detention, what is necessary?

Reasonable Suspicion that criminal activity is afoot


What does afoot mean?

1. A crime is about to be committed;
2. A crime is being committed; or
3. A crime has been committed


Can luggage be detained?



To determine if reasonable suspicion exists, couts will look at what?

The totality of the circumstances


Reasonable Suspicion can be established what four ways?

1. Personal observations
2. Information provided by other LEOs
3. Information from a witness/victim
4. Information from informants


What factors make information from informants reliable enough for reasonable suspicion?

* Amount of detail provided
* Accurate prediction of suspect's future behavior
* Whether and to what extent LEOs corroborate the information
* Whether the information is based on first-hand observations
* Whether the source is putting himself in danger
* Information provided in face-to-face meeting
* Timeliness of the report


What are some factors that can be used to justify investigative detentions?

* Suspect's nervous behavior
* Suspect's criminal history
* Officer's knowledge of recent criminal conduct
* Time and location of given situation
* Suspect fleeing, combined with other factors
* Suspect's presence in high crime areas, combined with other factors
* Suspect's non-responsive behavior


How long can an Investigative Detention last?

The detention must be reasonable and last no longer than necessary to effectuate the purpose of the stop


What three things must a Terry Stop be?

reasonable in time, place, and manner


To determine if use of force was reasonable, court will look at what five factors?

* Number of officers involved
* Nature of the crime and whether there was reasonable suspicion to believe the suspect was armed
* Strength of articulable, objective suspicions
* The need for immediate action
* Presence or lack of suspicious behavior or movement by the person under observation


When can LEOs use race in a description?

* The information must be relevant to the place and time of the criminal activity
* The information must be trustworthy
* The information must be tied to the particular criminal incident, criminal scheme, or criminal organization


Can LEOs use race from eyewitness accounts?

Yes, where a crime has occurred and LEOs have eyewitness accounts including the race, ethnicity, or other distinguishing characteristics, that information may by used.


Can LEOs use information provided from a reliable informant regarding a planned crime?

LEOs may use the information under the same restrictions as other informant's information


When can FLEOs consider race, ethnicity, and other relevant factors?

FLEOs protecting national security or preventing catastrophic events (as well as airport security screeners) may consider race, ethnicity, and other relevant factors to the extent permitted by laws and the constitution.


When does Probable Cause exist?

Where the known facts and circumstances are such that a reasonable man would believe contraband or evidence of a crime will be found in the search.


What PC must be necessary for an arrest?

the facts and circumstances lead to believe that the suspect committed or was committing an offense.


What PC must be necessary for a search?

Facts to support a fair probability that:

1. What you want to search for is evidence of a crime; and
2. Those things will be where you want to look and when you want to look


What is the origin of the Exclusionary Rule?

The Supreme Court


What is the purpose of the Exclusionary Rule?

To remove the incentive to search and seize unlawfully


The Exclusionary Rule only applies to what type of violation?

Constitutional Violations


What is the scope of the Exclusionary Rule

Unlawfully seized evidence is not admissible in a criminal trial


What is the "fruit of the poisonous tree" doctrine?

Evidence which indirectly derives from information learned illegally is inadmissible in a criminal trial


What are the six exceptions to the Exclusionary Rule?

1. No Standing to Object
2. Impeachment
3. Good Faith
4. Foreign Searches
5. Inevitable Discovery
6. Civil Cases


Can 4th Amendment rights be claimed by another person?

No, 4th Amendment rights are personal.


When can illegally obtained evidence be used to impeach?

1. Any testimony given by a defendant on direct examination, or
2. A defendant's statements made in response to proper cross-examination


In what four factors does the good faith exception not apply?

1. The government mislead the judge by including information in the affidavit is known to be false where the agent had a reckless disregard for the truth
2. The judge was not neutral or detached
3. The warrant lacked probable cause so that no one would believe PC actually existed
4. The warrant was so deficient that no officer would reasonably believe the warrant valid


Bob has a case filed against him in civil court (no threat of a criminal penalty), and had evidence seized illegally. Does the Exclusionary Rule apply?

No, if there is no criminal penalty, then there is no fourth amendment violation


In what three circumstances are foreign searches exceptions to the Exclusionary Rule?

1. Searches by Foreign Authorities
2. Foreign Searches of Non-Resident Aliens by American LEOs
3. Searches of US Citizens and Resident Aliens in Foreign Countries


What are the two exceptions to the Searches by Foreign Authorities Exclusionary Rule exception?

1. The conduct would shock the judicial conscience
2. Substantial participation by the US


What are the three exceptions to the Searches of US Citizens and Resident Aliens in Foreign Countries Exclusionary Rule exception?

1. Exclusively by the US government;
2. By the US in a joint operation; or
3. With the foreign authorities acting as agents of the US, then the 4th Amendment applies.