CrimPro—4th Amendment

Question 1

What Constitutes an Arrest under the 4th Amendment?

Answer 1

An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation.

Question 2

What is probable cause? Can a valid arrest be made without probable cause?

Answer 2

Probable cause is always required for any valid arrest.

Question 3

Are warrants required for a valid arrest? If so, when?

Answer 3

Warrants are rarely required for arrests.

Police generally do not need a warrant before arresting a person in a public place.

Exception: non-emergency home arrests require a warrant and reasonable belief suspect is at home.

TIP: police must have an arrest warrant to arrest an individual in their home; police may only enter the home if they have reason to believe the suspect is in the home.

Search warrant is required for police to execute an arrest of a suspect in a 3P’s home.

Question 4

Is a warrant required for police to execute an emergency arrest occurring in the arrestee’s home?

Answer 4

A warrant is not required for an emergency arrest occurring in the arrestee’s home.

Question 5

Can police always enter a home to arrest a suspect if they have a valid arrest warrant?

Answer 5

Police may only enter a home if they have reason to believe the suspect is in the home.

Question 6

What is a detention under the 4th amendment? How’s it different than an arrest?

Answer 6

A detention is a gov’t seizure of a person that is less than a full custodial arrest.

Question 7

If police validly hold someone outside their home in order to quickly get a search warrant, is this an arrest or detention?

Answer 7

Detention to obtain a search warrant:

(I) requires probable cause;

(II) If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant.

(III) Purpose must be to prevent destruction of evidence.

Question 8

What must police have in order to validly execute an automobile stop?

Answer 8

Automobile stop: Reasonable suspicion required (that a law has been violated) to stop or pull over a vehicle,

TIP: Pretextual stops—ulterior motive for a stop is OK if police have probable cause of a traffic violation.

Question 9

If police reasonably believe weapons may be present during an automobile stop, to what extent can they search passengers and inside the car?

Answer 9

Accompanying searches: Police may search:

Passengers and passenger compartment (but not the trunk) if officer reasonably believes weapons may be present.

Police can order passengers out of the vehicle.

Question 10

What requirements exist for a valid police checkpoint?

Answer 10

Police checkpoints must relate to a vehicle-specific purpose.

Requirement—police checkpoint/roadblock that stops cars w/o individualized suspicion (e.g., DUI checkpoints), must:

1. Stop cars using a neutral, articulable standard (e.g., every 4th car); and
2. Serve purposes related to automobiles and their mobility.

Question 11

How would you determine whether a search or seizure is reasonable under the 4th Amendment?

Answer 11

Determining the reasonableness of a search or seizure:

1. Is there gov’t conduct constituting a search or seizure?
   —Does not protect against private conduct.
2. Does D have standing?
3. Is there a valid search warrant?
4. If there is no valid search warrant, was there a valid exception to the search warrant requirement?

Question 12

What are the exceptions to the 4th Amendment search warrant requirement?

Answer 12

6 exceptions:

1. Search incident to arrest (SIA)
2. Plain view search
3. Automobile Search
4. Valid consent to search
5. Exigent circumstances
6. Stop and Frisk

Question 13

What must be shown for a D to have standing to challenge a search or seizure under the 4th Amend.?

Answer 13

D must have a reasonable expectation of privacy in the thing or place to be searched.

Question 14

The 4th Amendment. only applies to gov’t conduct, but in what situation might conduct by a private citizens constitute gov’t conduct?

Answer 14

Authorized conduct—private persons acting at the direction of gov’t agents constitutes gov’t conduct.

Question 15

In what situation will one always have a reasonable expectation of privacy (REOP) (i.e., automatic standing)?

Answer 15

Automatic standing—REOP always exists if D either:

A. Owns, has a right to possess, or lives in the premises search, or

B. Is an overnight guest of the premises to be searched.

Question 16

What must exist for someone to have standing to challenge a gov’t search under the 4th Amendment?

Answer 16

4th Amendment applies only if a person has a reasonable expectation of privacy (REOP) regarding the thing or place search and or items seized.

Question 17

What are the outer bounds of the area in which one has a reasonable expectation of privacy in their home?

Answer 17

Areas outside the curtilage are unprotected by the 4th am.

TIP: areas outside one’s home and outbuildings are subject to police search and seizure (e.g., garbage placed on the street).

Question 18

Would someone’s handwriting on a gov’t required form be protected under the 4th amendment? Why or why not?

Answer 18

No. There’s no REOP for inherently public things.

TIP: E.g., handwriting, voice, location, odors, public records, things viewable from public space, bank account records, smell of luggage—all inherently public things.

Question 19

What are the requirements for a valid search warrant?

Answer 19

Unless an exception applies, gov’t must have a properly executed warrant to conduct a search.

Requirements:

1. Based on probable cause—usually an affidavit demonstrating PC that the search or seizure will produce evidence.
2. Precise on its face.
3. Issued by a neutral and detached magistrate.

Question 20

If an affidavit supporting a search warrant is based on anonymous sources, is the warrant valid?

Answer 20

Yes. Affidavits may include information from anonymous sources.

TIP: if based on false information, warrant is invalid.

Question 21

If police conduct a search acting on an invalid search warrant, will the exclusionary rule always bar evidence of the search?

Answer 21

No. Enter the Good faith exception—exclusionary rule does not apply if police act in good faith on an invalid search warrant.

Question 22

If police act in good faith on an invalid search warrant, in what situations will the exclusionary rule still apply to bar evidence?

Answer 22

Exceptions to good faith reliance: Police can’t rely on a defective warrant obtained in good faith if:

A. Affidavit completely lacks PC (i.e., no reasonable PO would have relied on it),

B. Warrant is defective on its face,

C. Police of gov’t official lied or misled magistrate, or

D. Magistrate has “wholly abandoned her judicial role.”

Question 23

When must a search warrant be executed once it’s issued?

Answer 23

Timing: search warrant must be executed w/o unreasonable delay after it is issued.

Question 24

What is the knock and announce requirement w/regard to executing a search warrant?

Answer 24

Police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord.

Question 25

In what circumstances can police legally not comply w/knock and announce requirement?

Answer 25

Knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation.

Question 26

What is the allowable scope of a search pursuant to a valid search warrant?

Answer 26

Scope of search—limited to what is reasonably necessary to discover items described in the warrant.

Question 27

To what extent can police detain persons at a location they are searching pursuant to a valid search warrant? Can they search those persons?

Answer 27

Police can detain people found on the searched premises.. BUT: police CANNOT SEARCH DETAINED PERSONS UNLESS they are specifically named in the warrant or a valid warrantless search exception applies.

Question 28

What is a plain view search?

Answer 28

Police may search from any place where they are legitimately present when viewing (i.e., when conducting the search).

Question 29

When may police seize evidence in plain view w/o a warrant?

Answer 29

Police may seize evidence in plain view w/o a warrant if: 1. Police are legitimately on the premises from which they viewed the evidence to be seized; 2. Criminal activity or contraband is immediately apparent; & 3. Police have PC to believe that plainly viewed evidence is contraband or relates to a crime.

Question 30

If something is only viewable through binoculars, is it within the permissible scope of a plain view search?

Answer 30

Yes. Scope of plain view searches includes everything viewable from land or public property, even if only viewable through binoculars.

Question 31

If police smell something giving rise to PC but can’t see it, can they search the item.

Answer 31

Yes. Plain smell included w/plain view. If a smell gives rise to PC from a place of legitimate police presence, they can search that item.

Question 32

Are there limits on an allowable plain view search w/regard to police use of technology to see things in “plain view”?

Answer 32

Limitations: Police can’t use technology not generally available to the public to view evidence that may constitute a plain view search (e.g., infrared scanners that can view through walls). TIP: use of drones for plain view searches is unsettled law and unlikely to appear on the MBE.

Question 33

Is there a limit on what police search when they obtain valid consent?

Answer 33

With valid consent, police may search anything.

Question 34

What requirements must be satisfied for police to obtain valid consent to search?

Answer 34

Requirements for valid consent: 1. Voluntarily and intelligently made; —police can’t falsely claim legal cause to search. —police have no obligation to inform suspects that they have a right to refuse consent. 2. Person giving consent has authority to consent. —authority to consent must be reasonably apparent.

Question 35

If police get valid consent to search, what is the permissible scope of the search they may conduct? What happens if police search beyond that scope?

Answer 35

Scope of consent can be limited by consenting party. Violation of scope renders the entire search non-consenting.

Question 36

To what extent can a third party give consent to search?

Answer 36

Third party consent is allowed if there is authority to consent.

Question 37

Where there are multiple people with property rights to a given location, who has authority to give or refuse consent to search that location?

Answer 37

Where multiple people have property rights, any single one can consent to the search of any area where they have authority to consent. A resident’s right to consent to consent trumps a non-resident. Refusal trumps consent—No consent if 2 persons w/equal right to possession disagree on consent.

Question 38

Automobile Search Exception: What areas of a vehicle can police search pursuant to the automobile search exception?

Answer 38

Police can search the entire vehicle an all containers w/in the vehicle that might contain the object for which they are searching.

Question 39

Can police search passengers pursuant to the automobile search exception?

Answer 39

Police may search passengers and their belongings.

Question 40

To what extent can police conduct a search of a vehicle under the automobile search exception?

Answer 40

If PC exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for.

Question 41

Must police have probable cause to conduct an automobile search without a warrant? If so, when must it arise?

Answer 41

Requirements: 1. Police must have PC to search the vehicle; and 2. PC must arise **before** the search begins.

Question 42

What is stop and frisk? For what purpose and with what justification may police conduct a stop and frisk?

Answer 42

Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity.

Question 43

What is the allowable length of a stop and frisk detention?

Answer 43

Length: detention must be no longer than necessary to verify the suspicion.

Question 44

When is a frisk allowed under a Terry-type stop and what is the allowable scope of that frisk?

Answer 44

If police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons. TIP: stop & Frisk is often called a *Terry* stop.

Question 45

What is the “plain feel” doctrine in the context of a Terry frisk, and what are the limits on police conduct during the frisk?

Answer 45

Under the “plain feel” doctrine, during a lawful frisk, if a PO immediately has a *reasonable belief* based solely on tough that an item is a weapon or contraband, they may lawfully seize it. Limit: the PO *cannot manipulate* the item to determine its nature—belief must arise from the *initial plain touch*. TIP: evidence seized in compliance with/this rule is admissible.

Question 46

In what situations would exigent circumstances exist allowing a warrantless search or seizure?

Answer 46

Hot pursuit, evanescence evidence, and emergencies are forms of exigent circumstances justifying a warrantless search or seizure.

Question 47

What is a hot pursuit?

Answer 47

Hot pursuit: while actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection.

Question 48

What is evanescent evidence and what authority do police have with regard to a warrantless search or seizure of evanescent evidence?

Answer 48

Evanescence evidence—Police can search or seize evidence that could disappear if police were required to secure a warrant.

Question 49

What is the permissible scope of a search conducted pursuant to a hot pursuit?

Answer 49

Permissible scope is as broad as reasonably necessary to prevent suspect from escaping or resisting.

Question 50

If police try to arrest a suspect in public, but she flees in to a private dwelling, can police enter the dwelling without a warrant to effectuate the arrest?

Answer 50

Yes. Police can enter into a private dwelling after attempting arrest in public place if they have probable cause.

Question 51

When would an emergency justify a warrantless search?

Answer 51

Emergency—warrantless searches are justified for emergencies that threaten health or safety if not immediately acted upon.

Question 52

What standards exist for school officials to conduct a search at a public school? When will such a search be reasonable?

Answer 52

To conduct a search, school officials must have reasonable grounds to believe the search is necessary. School search is reasonable if: 1. Search offers a moderate chance of finding evidence of wrongdoing; 2. Procedure for searching is reasonably related to the objectives of the search; and 3. Search is not excessively intrusive.

Question 53

Does electronic surveillance require a warrant under the 4th Amendment?

Answer 53

Electronic surveillance (e.g., wiretapping, eavesdropping) that violates a reasonable expectation of privacy constitutes a search under the 4th Amendment and requires a warrant.

Question 54

What are the requirements for a warrant for electronic surveillance?

Answer 54

1. Probable cause that a specific crime is being or has been committed. 2. Warrant must name suspects subject to surveillance. 3. Warrant must describe with particularity the subject of conversations that can be surveilled. 4. Surveillance must be limited to short periods of time. 5. Surveillance must terminate when desired information is obtained and must be turned over to the court.