Fourth Amendment-Evidentiary Search and Seizure Flashcards
What is the fourth amendment - evidentiary search and seizure?
Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires a warrant except in six circumstances. Evidentiary search and seizure issues should be approached using the following analytical model:
• Does the defendant have a Fourth Amendment right (seizure by the government concerning a place or thing in which defendant had a reasonable expectation of privacy) or does the search involve a physical intrusion into a constitutionally protected area?
• Did the police officers have a valid warrant (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)?
• If the police officers did not have a valid warrant, was the search or seizure within one of the six exceptions to the warrant requirement?
What is governmental conduct?
The Fourth Amendment generally protects only against governmental conduct (that is, police officers, other government agents, or private individuals acting at the direction of the public police). It does not protect against searches by privately paid police unless they are deputized as officers of the public police. Examples of privately paid police include store security guards, subdivision police, and campus police.
When is there a reasonable expectation of privacy?
There are two ways in which searches and seizures can implicate an individual’s Fourth Amendment rights: (1) search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; or (2) physical intrusion by the government into a constitutionally protected area to obtain information.
Who has standing to object to a governmental search?
A person must have standing to object to a governmental search. To have a Fourth Amendment right, a person must have their own reasonable expectation of privacy with respect to the place searched or the item seized. The determination is made on the totality of the circumstances, but a person has a reasonable expectation of privacy any time:
• The person owned or had a right to possession of the place searched
• The place searched was in fact their home, whether or not they owned or had a right to possession of it (for example, a grandchild living at a grandparent’s home); or
• The person was an overnight guest of the owner of the place searched
There is an important “sometimes” category of standing: The person owns the property seized. If a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched
Is there privacy for things held out to the public?
A person does not have a reasonable expectation of privacy in objects held out to the public. Generally, this includes information in the hands of third parties (such as bank account records). However, a person does have a reasonable expectation of privacy in their cell-site location information(that is, personal location information derived from cell phone usage data) which is stored in the hands of third parties.
The following is a list of things held out to the public, the seizure of which implicates no right to privacy:
(1) The sound of your voice
(2) The style of your handwriting
(3) The paint on the outside of your car
(4) Account records held by a bank
(5) The location of your car on a public street or in a driveway
Note: In 2012, the Supreme Court held that installation of a GPS device on a suspect’s car constitutes a search within the Fourth Amendment.
(6) Anything that can be seen across the open fields
(7) Anything that can be seen from flying over public airspace
(8) The odors emanating from your luggage or car; and
(9) Garbage set out on the curb for collection
Note: Use of sense-enhancing technology that is not in general public use (for example, a thermal imager as opposed to a telephoto camera lens) to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion violates the suspect’s legitimate expectation of privacy. And police officers may not covertly and trespassorily place a GPS tracking device on a person’s automobile without a warrant.
What are searched that are conducted pursuant to a warrant?
Generally, criminal law enforcement officers must have a warrant to conduct a search unless it falls within one of the six exceptions to the warrant requirement. There are two core requirements for a facially valid search warrant: probable cause and particularity.
Do you need a showing of probable cause to get a warrant?
A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make adetermination of probable cause independent of the officers’ conclusions.
a. Use of Informers
An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination. Note that the informer’s identity generally need not be revealed.
b. Going “Behind the Face” of the Affidavit
A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:
• A false statement was included in the affidavit by the affiant (the officer applying for the warrant)
• The affiant intentionally or recklessly included the false statement; and
• The false statement was material to the finding of probable cause Police May Reasonably Rely on Validity of Warrant
Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.
Does the warrant have to be precise?
A warrant must describe with particularity the place to be searched and items to be seized. If it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail.
Can the warrant be anticipatory?
A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued.
Can you search a third party on the premises?
A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there.
What are the requirements needed for the magistrate to issue a warning?
The magistrate who issues the warrant must be neutral and detached (for example, a state attorney general is not neutral).
How is the warrant executed?
Only the police (and not private citizens) may execute a warrant, and it must be executed without unreasonable delay. Police must knock, announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation). The police may not be accompanied by any third parties unless the third parties are present to aid in identifying stolen property. The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant. Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant. In any case, remember that violations of the knock and announce rule will not result in the suppression of evidence otherwise properly obtained—the exclusionary rule does not apply here.
a. Search of Persons Found on Searched Premises
A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant. Neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed. Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed. Of course, if a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a Terry pat down for weapons.
