Fourth Amendment Flashcards
(98 cards)
1
Q
Text of the Fourth Amendment
A
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
2
Q
2 prong test to determine if there is a detention
A
- Mendenhall: if a reasonable person would no longer feel free to leave
- Hodari D.: if the officer physically contacted the suspect OR the suspect submitted to the officer’s authority
3
Q
Definition of reasonable suspicion
A
less than probable cause, must be based on “specific and articulable facts”
4
Q
3 step detention analysis (before search and seizure analysis)
A
- Is there a detention?
- Is the detention supported by “reasonable suspicion” that the D is involved in criminal activity?
- Has the legal detention become overly prolonged?
5
Q
Legal detention overly prolonged?
A
Cops engaging in consensual interrogation?
Cops don’t have to tell people that they are free to go.
6
Q
5 steps to Search and seizure analysis?
A
- Is there government conduct?
- Is there REOP in the place searched?
- Was there a valid search warrant?
- If not, do any of the exceptions to the warrant requirement apply?
- Are any remedies available?
7
Q
What kind of action is unconstitutional without a warrant?
A
State action/ govt conduct. Search and seizure.
Includes use of devices not in the general, public use
8
Q
2 tests to determine REOP
A
- Katz (privacy based)
2. Jones (trespass test)
9
Q
2 fold Katz requirement
A
- Person have subjective, personal expectation of privacy?
2. Expectation one that society recognizes as reasonable?
10
Q
Jones trespass test
A
Was there any physical intrusion by officers?
11
Q
4 levels of EOP under Jones
A
- highest: homes/ hotels
- middle: business premises
- reduced: vehicles
- reduced: public action
12
Q
curtilage
A
area outside of home that is protected
13
Q
Ways to determine if curtilage of home is protected
A
Clearly marked
Steps taken by owner to keep people out
14
Q
Open fields
A
Not protected under 4th Amend
15
Q
How to determine if area is considered an open field
A
If owner gives leave for others to enter (even implicitly)
Public thoroughfare, public air space
16
Q
When do the police need a warrant to enter home to make an arrest?
A
Always unless there is an exception.
Even if arrestee is in a 3rd party’s home (need warrant to search AND arrest warrant)
17
Q
Requirement for searching business premises
A
Must show nexus between area searched and D’s workspace
18
Q
Rules for EOP in public
A
What someone KNOWINGLY exposes to the public has no EOP.
What someone intends to keep private MAY be protected
19
Q
5 generally recognized ways to establish REOP (use for analysis after Katz and Jones test)
A
- Legitimately on the premises at the time of the search AND a possessory interest in the item seized.
- Right to exclude others from the area searched.
- Continuing access to the area searched AND a possessory interest in the item seized.
- A valid bailment.
- D is personally seized by police.
20
Q
What must D demonstrate to establish REOP?
A
one of the 5 generally recognized ways to establish REOP
21
Q
Do overnight guests have a REOP in hosts’ homes?
A
Yes. If legitimately on the premises at the time of the search AND a possessory interest in the item seized.
22
Q
Do invitees have a REOP in hosts’ homes?
A
Depends on the facts of the case. If there for extended time, continuous access, possessory interest in the item seized.
23
Q
Definition of a seizure
A
meaningful interference with D’s possessory interest
24
Q
4 effects police can seize
A
- contraband
- fruits of a crime
- instrumentalities of a crime
- evidence of a crime
25
2 best arguments AGAINST establishing REOP
purely commercial transaction
| short period of time
26
8 exceptions to the warrant requirement
1. search incident to lawful arrest
2. vehicle exception
3. exigency
4. inventory
5. consent by occupant or D
6. plain view/ plain touch
7. Special govt needs/ administrative inspection
8. Terry stop
27
Search incident to lawful arrest
Contemporaneous search of:
1. person being arrest (valid custodial arrest)
2. the place in the immediate and complete control of the arrestee
28
Things cops can seize in the immediate and complete control of an arrestee incident to arrest.
1. things connected with the crime
2. means of committing crime
3. fruits of crime
4. weapons
5. anything that would be used to escape custody
6. a space large enough to hold a co-D
29
Why can cops search incident to arrest?
To avoid:
destruction of evidence
harm to officers or another
escape of arrestee
30
Automobile exception
Without a warrant, police may search a vehicle if they have probable cause to believe that the vehicle contains contraband.
31
What is the scope of the automobile exception?
Cops may search entire vehicle (even to the point of deconstructing it)
Once the item they are searching is found, the search must end immediately
32
What is the EOP of containers?
Full EOP in closed containers, but once a container enters a car, there is a lowered EOP
33
When can police search containers?
A. In a vehicle
1. When there is probable cause to believe there is contraband
2. And if the item they are searching for can fit in the container
B. outside a vehicle
1. cops need a warrant
34
When can cops check a passenger compartment of a car?
1. if it is within reaching/grabbing distance of an unsecured arrestee
2. OR, even if not within wingspan, there is "reason to believe" the compartment contains evidence of the offense
35
When can cops search a trunk?
with a warrant, exigency, inventory searches, special govt needs, if it is within arrestee's wingspan
36
Factors to determine if a motor vehicle is a residence
```
whether it has been moved recently
location
connection to utilities
vehicle licensed
mobility
```
37
What are the search requirements for passengers?
1. passenger's items can be searched if they meet container requirements or other vehicle exceptions
2. passengers have a personal privacy interest in their person
3. a reasonable passenger would not feel free to leave if driver's car is pulled over
38
Examples of exigency
```
hot pursuit
no time to get warrant and urgent
police have a reasonable belief that evidence would be destroyed if they waited for the warrant to arrive
smell of death or meth lab
shots fired
screams
```
39
2 requirements for inventory search
1. not an evidence gathering search
| 2. standardized administrative procedure (routine operating procedure)
40
3 justifications for inventory search
1. to protect owner's property
2. to protect police against false accusations
3. to check for dangerous instrumentalities while cops in possession of car
41
When would evidence under the inventory exception be admissible?
Under the plain view doctrine
| as long as the search and seizure was valid
42
Consent by occupant or D rule
must be voluntary, not coerced
43
3 requirements of the Plain view/ plain touch doctrine
Object of an incriminating nature can be seized without a warrant if:
1. cops observed evidence from a lawful vantage point
2. cops must have a right to physical access to the place where the object was seen
3. must have probable cause to seize
44
Special government needs/ Administrative inspection
Warrantless inspections can be validly conducted for spec. govt. needs beyond the normal need for law enforcement without any individualized or particularized suspicion needed.
Must be conducted pursuant to some neutral criteria set out in the administration's policy
45
Some administrative/ govt needs inspections
1. safety inspections
2. border searches
3. vehicle checkpoints
4. terrorist checkpoints
5. search of students
6. drug/ alcohol testing
46
5 factors that make an administrative stop/ special govt needs search better
1. brief nature of stop
2. advance warning
3. standard practices
4. superior oversight
5. interest in protecting public safety
47
Test for reasonableness of administrative stop/ special govt needs search
balancing test for reasonableness:
1. scope of intrusion
2. vs. nature and importance of govt and public interest
48
Test for reasonableness of Terry stop
balancing test for reasonableness:
1. scope of intrusion
2. vs. nature and importance of govt and public interest
49
Standard for Terry Stop
reasonable suspicion
50
Definition of reasonable suspicion
must have "specific and articulable" facts that D involved in criminal activity which, when taken together with rational inferences from those facts, reasonably warrant the intrusion
51
When does a Terry stop require a higher standard?
a short, brief detention only requires reasonable suspicion
a prolonged detention requires PC
52
How to determined reasonable suspicion
totality of the circumstances
53
When may a cop frisk or pat down a D?
1. When the cop has a RS that D was involved in criminal activity
2. AND that the frisk is necessary for the preservation of cop's safety or safety of others
54
Two prongs of reasonable suspicion based on informant information
1. totality of the circumstances
2. reliability/ veracity of the I
(strength in one prong can make up for weakness in other prong)
55
Plain touch
1. cops may pat down D on RS that D has contraband or weapon
2. if cop feels contraband or weapon, he can pull it out
3. If not, cop has to stop pat down immediately
56
8 step Search warrant analysis
1. Is there PC in the affidavit?
2. Is there present PC, or has the info become stale?
3. Neutral and detached magistrate?
4. particularity in the place to be searched and things to be seized?
5. execution proper?
6. knock-notice complied with?
7. If no PC, does an exception apply?
8. Does anything invalidate the good faith exception?
57
General rule about warrantless seraches
warrantless searches are per se unconstitutional
58
Two tests for PC in affidavit
1. Aguilar-Spinelli
| 2. Gates
59
Aguilar-Spinelli test
2 prongs (must satisfy both)
1. basis of knowledge
2. informant credible/ reliable
60
How to determine if basis of knowledge prong met
1. personal knowledge
2. victim information
3. direct observations by police
4. official channels
5. collective knowledge
61
How to determine if the informant was credible or reliable?
Magistrate must know some of the underlying facts to sign warrant:
1. statement against penal interest
2. "bald and unilluminating" assertion of suspicion and conclusory statements are afforded no weight
3. good track record of giving reliable info
62
When must the govt disclose the informant's ID to D?
Only when informant info goes to guilt rather than PC
63
Current test of PC
Gates (totality of the circumstances)
64
2 prongs of Gates totality of the circumstances test of PC
Both prongs don't have to be met (if one prong is missing, cops can corroborate)
1. a "fair probability" that contraband is presently at that location
2. a balanced assessment of the relative weight of various indicia of reliability
65
Some indicia of reliability for Gates' 2nd prong
1. descriptions with such great detail a magistrate could reasonably infer that the informant gained his information in a reliable way
2. self-verifying detail: accurate predictions of future events
3. victim statements
66
Police corroboration
Has to be about criminal activity, not mundane stuff
67
Example of a non-neutral and non-detached magistrate
financial interest in issuing the warrant
68
Plain view when executing a search warrant
seizure of items not named in the warrant is allowed only if they are contraband in plain view, and found inadvertently
69
Particularity requirement scope
once the items named in the warrant have been found and seized, the search must cease
70
When can people be detained during execution of search warrant?
people on premises can be detained w/o warrant, under reasonable suspicion
71
Proper execution requirements
A. between 7:00 am – 10:00 p.m. in California
i. nighttime endorsement for 24-hour service is possible
B. within 10 days
72
Remedy for violation of knock-notice requriement
Nothing! Does not lead to the exclusion of evidence
73
Knock-notice requirement
Police must:
1. knock
2. announce that they have a warrant
3. wait a reasonable amount of time before kicking in door/ breaking window
74
Purpose of knock-notice requirement
To protect the safety of executing officers and occupants
| To prevent violence
75
How long is a reasonable amount of time for knock-notice requirement?
30-45 seconds under CA case law
| exigent circumstances: 15 seconds
76
If there is not PC in affidavit, does an exception apply? 3
1. consent
2. exigency of the circumstances
a. hot pursuit
b. public safety issues
3. good faith exception (Leon)
77
When may a cop frisk or pat down a D?
1. When the cop has a RS that D is armed and dangerous
| 2. AND that the frisk is necessary for the preservation of cop's safety or safety of others
78
Leon Good faith exception
1. would an objectively reasonable officer have thought the affidavit had probable cause?
2. although, law enforcement should not be expected to disbelieve a judge
3. courts are lenient when there is an honest mistake
79
Four exceptions to the Good faith exception
1. false/ reckless information in affidavit by police
2. no neutral or detached magistrate/ magistrate abandoned her role
3. PC is so lacking that no reasonable police officer would have believed that the affidavit contained PC
4. warrant is facially deficient: lacks particularity
80
Remedies for violation of 4th Amend
1. exclusionary rule
| 2. fruit of the poisonous tree
81
What is the exclusionary rule?
A judicial remedy that excludes evidence initially used to obtain a search warrant
82
Purpose of the exclusionary rule
To deter unlawful state action
83
When to apply ER
When its application would deter this particular future unlawful conduct
84
Good faith exception to ER
If the govt, though mistaken, acts reasonably, evidence not excluded from trial.
85
Why does the GF exception apply to ER
because punishing act of good faith would not deter unlawful police misconduct
86
Test to determine if ER applies
standard of reasonableness (balancing test):
1. deterring (intentional) police misconduct
2. v. cost to society (withholding relevant evidence from the finder of fact
87
Ex of acts that would not serve as a deterrent and, therefore, would not fall under ER
1. clerical errors
| 2. unconstitutional legislation
88
Who can claim ER?
Only the person whose right was violated. No third party standing.
89
Fruit of the poisonous tree
evidence from illegal conduct by govt is inadmissible against the victim of the misconduct; secondary or derivative evidence can be excluded when it is tainted by the primary evidence
90
When can statements be excluded as fruit of the poisonous tree?
When derived from 4th amend violation
91
4 post-search exceptions to the fruit of the poisonous tree
1. attenuation
2. independent source
3. inevitable discovery
4. good faith exception
92
Attenuation, 5 factors
Has the taint become weakend?
1. passage of time
2. length of casual chain
3. intervening act of free will/ intervening events
4. flagrancy of violation of police
5. nature of 4th amend violation
93
Passage of time (attenuation)
the more time between the violation and the obtaining of the evidence=more attenuation
94
Length of the casual chain (attenuation)
the more intervening factors=more attenuation
95
Intervening acts of free will (attenuation)
such as D’s voluntary decision to confess, consent to search, or a 3rd party being willing to testify
96
flagrancy of police violation (attenuation)
if it is a technical, low level violation= more attenuation
97
nature of 4th amend violation (attenuation)
a. physical evidence
| b. statements (courts more willing to find attenuation)—Did they receive Miranda warnings?
98
definition of probable cause
DOES NOT mean more likely than not
Simply requires enough information that a person of reasonable caution would suspect
Substantial probability
