Introduction and Fourth Amendment

Question 1

Fourth Amendment generally

Answer 1

Prohibition against unreasonable searches and seizures

Exclusionary rule

Question 2

Fifth Amendment generally

Answer 2

Privilege against compulsory self-incrimination

Prohibition against double jeopardy

Question 3

Sixth Amendment generally

Answer 3

Speedy trial

Public trial

Trial by jury

Confront witnesses

Compulsory process for obtaining witnesses

Right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed

Question 4

Eighth Amendment generally

Answer 4

Prohibition against cruel and unusual punishment

Prohibition against excessive fines

Question 5

Constitution and states

Answer 5

Fourth, fifth, sixth, and eighth amendments are binding on the states

Constitution provides the floor of protection - states are free to grant greater protection

Question 6

Constitutional rights not binding on the states

Answer 6

The right to indictment by a grand jury for capital and infamous crimes has been held not to be binding on the states

Question 7

Seizure generally

Answer 7

Fourth amendment provides that people should be free from unreasonable searches and seizures

Arrests are seizures so just needs to be reasonable

Question 8

What is a seizure

Answer 8

Any exercise of control by a government agent over a person or thing

A seizure is when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter

Question 9

When arrest occurs

Answer 9

An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation

Question 10

Definition of probable cause

Answer 10

Trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law

Based on totality of the circumstances

Question 11

Requirements for an arrest

Answer 11

An arrest must be based on probable cause

A warrant generally is not required before arresting a person in a public place, but is needed for arresting someone in their home generally (unless exception)

Question 12

Arrest in home

Answer 12

Need a warrant, unless exception

May enter the suspect’s home only if there is reason to believe the suspect is within it

Question 13

Station house detentions

Answer 13

Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will

Question 14

Effect of invalid arrest

Answer 14

An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution

Arrest with no probable cause, but later on does have probable cause, no problem that it originally was not there

Question 15

Terry stops and frisks generally

Answer 15

The police have authority to briefly detain a person even if they lack probable cause to arrest
- brief detention for the purpose of investigating suspicious conduct

Can detain a person for investigative purposes if there is reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts
- not merely a hunch

Can also frisk for weapons if reasonable suspicion that the detainee is armed and dangerous

Question 16

Reasonable suspicion definition

Answer 16

More than just vague suspicion, but less than probable cause

Whether the police have reasonable suspicion depends on the totality of the circumstances

Question 17

Reasonable suspicion and informants

Answer 17

When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability, including predictive information

But predictive information does not have to be there to find it

Totality of the circumstances test - the informant’s reliability and credibility or their basis of knowledge are relevant factors in making the determination

Question 18

Duration and scope of terry stops

Answer 18

Not subject to a specific time limit - must act in a diligent and reasonable manner in confirming or dispelling their suspicions

Detention can turn into an arrest if during the detention, other probable cause for arrest arises

Question 19

Asking for identity during terry stops

Answer 19

The police may ask the detained person to identify themselves and generally may arrest the detainee for failure to comply with such a request

Question 20

Property seizures - terry

Answer 20

Brief property seizures are similarly valid if based on reasonable suspicion

Question 21

Automobile stops generally

Answer 21

Generally, police officers may stop a car if they have at least reasonable suspicion to believe that a law has been violated

Question 22

Traffic stops and police dogs

Answer 22

During routine traffic stops, a dog sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries

Dog alert to the presence of drugs can form the basis for probable cause for a search

Question 23

Police dogs and the home

Answer 23

Police, without probable cause, cannot use a drug sniffing dog outside the home of a suspected drug dealer

Question 24

Mistake of law - terry stops

Answer 24

A police officer’s mistake of law (mistakenly believing that a vehicle must have two working brake lights) does not invalidate a seizure as long as the mistake was reasonable

Question 25

Terry stop - other occupants

Answer 25

An automobile stop constitutes a seizure not only of the automobile's driver, but also of any passengers as well Passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop

Question 26

Informational checkpoints generally

Answer 26

If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional Ex: robbery or burglary happened the day before, cops make roadblock stopping in the same area the next day to ask if people see, etc

Question 27

Special law enforcement needs and roadblocks

Answer 27

If special law enforcement needs are involved, the SC allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver violated some law To be valid, the roadblock must - stop cars on the basis of some neutral, articulable standard, and - be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility Ex: roadblock for DUI checkpoint Can't be used to detect evidence of ordinary criminal wrongdoing

Question 28

Car stop and occupants out of car

Answer 28

After lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out If the officer reasonably believes the detainees are armed, the officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out

Question 29

Pretextual stops

Answer 29

If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop Can pull someone over for a valid, traffic law violation even if ulterior motive is to search for other reasons

Question 30

Preventing individual from entering home and warrant

Answer 30

If the police have probable cause to believe that a suspect has hidden drugs in their home, they may, for a reasonable time, prevent the suspect from going into the home unaccompanied so that they can prevent the suspect from destroying the drugs while they obtain a search warrant

Question 31

Grand jury appearance - fourth amendment concerns

Answer 31

Seizure of a person by subpoena for a grand jury appearance is not within the fourth amendment's protection

Question 32

Seizure and deadly force

Answer 32

There is a fourth amendment seizure when a police officer uses deadly force to apprehend a suspect An officer may not use deadly force unless it is reasonable to do so under the circumstances - for example, when the suspect poses a danger to their own life or the lives of others

Question 33

Fourth amendment right generally

Answer 33

A defendant will have a fourth amendment right when there is a seizure by the government concerning a place or thing in which the defendant had a reasonable expectation of privacy or the search involved a physical intrusion into a constitutionally protected area

Question 34

Evidentiary search and seizure generally

Answer 34

Like arrests, evidentiary searches and seizures must be reasonable to be valid under the fourth amendment Reasonableness requires a warrant except in 6 circumstances Approached with following steps - was there government action - does the party have standing - is there a warrant - if not, was there an exception to the requirement

Question 35

Governmental conduct

Answer 35

The Fourth Amendment generally protects only against governmental conduct - police officers - other government agents - private individuals acting at the direction of the public police Does not protect against searches by privately paid police unless they are deputized as officers of the public police - like security guards, subdivision police, and campus police

Question 36

Standing generally

Answer 36

Two ways an individual will get standing - when searches and seizures implicate their individual fourth amendment rights - search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy, or - physical intrusion by the government into a constitutionally protected area to obtain information Totality of the circumstances Need standing to object to a governmental search - their own reasonable expectation of privacy

Question 37

Expectation of privacy - held out to the public generally

Answer 37

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 But cell-site location information

Question 38

List of things held out to public (9)

Answer 38

Following implicates no right to privacy because it was held out to the public: - sound of ones voice - style of handwriting - paint on outside of car - account records held by a bank - location of car on a public street or in a driveway - anything that can be seen across the open fields - anything that can be seen from flying over public airspace - the odors emanating from luggage or car, and - garbage set out on the curb for collection

Question 39

Cell-site location information

Answer 39

A person does have a reasonable expectation of privacy in their cell-site location information which is stored in the hands of third parties This is personal location information derived from cell phone usage data

Question 40

Installing a GPS device

Answer 40

Although the location of a car on a public street or in a driveway is held out to the public and thus, there is no expectation of privacy, the installation of a GPS device on a suspect's car constitutes a search within the Fourth Amendment

Question 41

Sense-enhancing technology

Answer 41

The use of sense-enhancing technology that is not in general public use 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

Question 42

Warrant generally

Answer 42

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 Two core requirements for a facially valid search warrant: - probable cause - particularity

Question 43

Warrant - probable cause

Answer 43

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

Question 44

Warrant - affidavit

Answer 44

Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers' conclusions

Question 45

Invalid search warrant on the basis of an affidavit

Answer 45

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 affiant intentionally or recklessly included the false statement, and - the false statement was material to the finding of probable cause This test for invalidating the affidavit is very restrictive - all three must be met

Question 46

Automatic time of standing

Answer 46

A person will have a reasonable expectation of privacy anytime - 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, or - the person was an overnight guest Sometimes category - person owns the property seized. Will have standing only if they have a reasonable expectation of privacy in the item or area searched

Question 47

Police reliance on warrant

Answer 47

Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution even if there is an ultimate finding that the warrant was not supported by probable cause Good faith exception - applies only if the police obtained a warrant and it is invalid

Question 48

Requirements of contents of the warrant

Answer 48

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

Question 49

Anticipatory warrant

Answer 49

A warrant can predict when illegal items may be in a suspect's home or office The items do not need to be on the premises at the time the warrant is issued

Question 50

Search of third-party premises

Answer 50

A warrant may be obtained to search premises belonging to non suspects as long as there is probable cause to believe that evidence will be found there

Question 51

Magistrate - warrant

Answer 51

The magistrate who issues the warrant must be neutral and detached from the case

Question 52

Executing a warrant - who, when, scope, what can be seized

Answer 52

Only the police may execute a warrant and it must be executed without unreasonable delay Cannot 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 Can seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant

Question 53

Knock and announce

Answer 53

When executing a warrant, the 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 Violations of the knock and announce rule will not result in the suppression of evidence otherwise properly obtained - the exclusionary rule does not apply to knock and announce

Question 54

Search of persons found on searched premises

Answer 54

A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but does not authorize police to search persons found on the premises who weren't named in the warrant Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed

Question 55

Search incident to constitutional arrest

Answer 55

Exception to warrant requirement Incident to a constitutional arrest (one based on probable cause and meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence Must be contemporaneous in time and place with the arrest - but that does not necessarily mean simultaneous If search is unconstitutional, any search incident to that arrest is also unconstitutional

Question 56

Protective sweep

Answer 56

SITA Police may make a protective sweep of the area if they believe accomplices may be present

Question 57

SITA and geographic scope

Answer 57

The person and the areas within the person's wingspan is what can be searched

Question 58

SITA and automobiles

Answer 58

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search - the arrestee is unsecured and still may gain access to the interior of the vehicle, OR - the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle Passenger compartment = no trunks

Question 59

What was found from search differs than reason for search

Answer 59

So long as the search itself is valid, anything found during it is seizable

Question 60

Technology searches

Answer 60

In assessing the validity of a search incident to an arrest involving things that did not exist when the fourth amendment was adopted, the court will balance the degree to which the search incident to arrest intrudes upon a person's privacy against the degree to which the search is needed to promote legitimate governmental interests

Question 61

Blood tests

Answer 61

When arrest for DUI, police can administer a warrantless breath test but not administer a warrantless blood test

Question 62

Cell phone itself vs. its data

Answer 62

Make sure arrestees do not have weapons / contraband Can examine the physical attributes of a person's cell phone upon arrest but cannot examine the data on a cell phone without a warrant

Question 63

Search - incarceration / impoundment

Answer 63

Can make an inventory search of the arrestee's belongings pursuant to established department procedure Can make inventory search of an impounded vehicle - and any containers contained in car

Question 64

Automobile exception

Answer 64

If police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole car and any container that might reasonably contain the item for which they had probable cause to search Includes the trunk If warrantless search is valid, can tow the car to the station to search later Warrantless does not apply if the car is parked in the cartilage of a home Car itself can be contraband - so can seize it from a public place

Question 65

Passenger in car

Answer 65

The search may extend to packages belonging to a passenger - not limited to the driver's belongings

Question 66

Containers in car

Answer 66

Probable cause only to search a container in a vehicle (luggage recently placed in the trunk), can search only the container - not the other parts of the car

Question 67

PC and after car is stopped

Answer 67

PC necessary to justify the warrantless search of a car can arise after the car is stopped But PC must arise before anything or anybody is searched

Question 68

Plain view

Answer 68

Warrantless seizure when - legitimately on the premises - discover evidence, fruits or instrumentalities of crime, or contraband, - see such evidence in plain view, and - it is immediately apparent (probable cause to believe) that the item is evidence, contraband, or a fruit of instrumentality of crime

Question 69

Warrant - consent

Answer 69

A warrantless search is valid if the police have voluntary consent Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent Police saying they have a warrant negates consent

Question 70

scope of search - consent

Answer 70

The scope of the search may be limited by the scope of consent Generally extends to all areas to which a reasonable person under the circumstances would believe it extends

Question 71

Authority to consent for others

Answer 71

Any person with an apparent equal right to use or occupy property may consent to a search - reasonably apparent authority to consent And any evidence found may be used against the other owners or occupants Occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant

Question 72

Co-occupant objects to search - consent for others

Answer 72

If a co-occupant objects to a search and is removed for a reason unrelated to the refusal (arrested), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent

Question 73

Terry stop standard

Answer 73

A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity

Question 74

Terry frisk standard

Answer 74

If the officer reasonably believes that the person may be armed and presently dangerous, officer may conduct a protective frisk Generally limited to a putdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect's clothing - plain feel

Question 75

Evidence from terry frisk

Answer 75

During a pat down, an officer may reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon or contraband Watch out for "manipulated"

Question 76

Terry stops and frisks - automobile

Answer 76

If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may - conduct a frisk of the suspected person, and - search the vehicle, so long as it is limited to the areas in which weapons may be placed

Question 77

Evanescent evidence exception

Answer 77

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant - fleeting evidence Exception to warrant requirement Officers need to get a warrant before taking a blood sample for a dUI arrest if it is practical to do so

Question 78

Hot pursuit

Answer 78

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling - can enter premises without warrant - any evidence seen in plain view will be admissible For misdemeanors, don't always justify warrantless entry If police are not within 15 minutes behind the fleeing felon, it is not hot pursuit

Question 79

Emergency aid / community caretaker exception to warrant

Answer 79

Exception to warrant requirement A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public

Question 80

Public school searches

Answer 80

A warrant or probable cause is not required for public school officials to search public school students or their possessions - drug tests of public school students who participate in extracurricular activities are okay Only reasonable grounds for the search are necessary

Question 81

When public school search will be reasonable

Answer 81

School search will be held to be reasonable only if - it offers a moderate chance of finding evidence of wrongdoing - the measures adopted to carry out the search are reasonably related to the objectives of the search, and - the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 82

Search at US border

Answer 82

Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the US border, due to national sovereignty interests Patrols inside the US may stop a vehicle for questioning of occupants if an officer reasonably suspects that the car contains undocumented aliens

Question 83

Wiretapping and eavesdropping

Answer 83

Wiretapping and other forms of electronic surveillance violating a reasonable expectation of privacy constitutes a search Warrant authorizing it if - probable cause - suspected persons involved in the conversations to be overheard are named, - the warrant describes with particularity the conversations that can be overheard - the wiretap is limited to a short period of time - the wiretap is terminated when the desired information has been obtained, and - return is made to the court, showing what conversations have been intercepted Exceptions

Question 84

The unreliable ear and uninvited ear exception

Answer 84

A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation - thus, no expectation of privacy A speaker has no fourth amendment claim if they make no attempt to keep the conversation private