search and seizure

Question 1

steps for analyzing search and seizure

Answer 1

1) governmental conduct?

2) standing? (reasonable expectation of privacy)

3) valid warrant? (probable cause + particularity)

4) good faith defense?

5) exceptions to warrant requirement?

Question 2

fourth amendment generally protects only against conduct by:

Answer 2

governmental conduct (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 (store security guards, subdivision police, and campus police) unless they are deputized as officers of the public police.

Question 3

when search and seizures implicate 4th amendment rights:

Answer 3

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.

Question 4

standing to object to a governmental search

Answer 4

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

*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.

Question 5

does a person have reasonable expectation of privacy in objects held out to the public?

Answer 5

No. 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 personal location information derived from cell phone usage data.

Question 6

can information be obtained using sense-enhancing tech?

Answer 6

Use of sense-enhancing technology that is not in general public use (ex. thermal imager) 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.

Police officers may not covertly and trespassorily place a GPS tracking device on a person’s automobile without a warrant.

Question 7

requirements for a facially valid search warrant

Answer 7

1) probable cause

2) particularity

Question 8

showing of probable cause - officers must

Answer 8

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 9

probable cause - use of informers

Answer 9

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.

Question 10

probable cause - going behind the face of the affidavit

Answer 10

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:

1) A false statement was included in the affidavit by the affiant (the officer applying for the warrant)

2) The affiant intentionally or recklessly included the false statement; and

3) 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.

Question 11

warrant must be precise on its face

Answer 11

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 12

warrant may be anticipatory

Answer 12

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.

Question 13

search of third-party premises permissible

Answer 13

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.

Question 14

neutral and detached magistrate requirement

Answer 14

The magistrate who issues the warrant must be neutral and detached (for example, a state attorney general is not neutral).

Question 15

who may execute warrant

Answer 15

Only the police (and not private citizens)

Question 16

when must warrant be executed

Answer 16

without unreasonable delay

Question 17

execution of warrant - how must police enter?

Answer 17

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).

Question 18

execution of warrant - can third parties come?

Answer 18

may not be accompanied by any third parties unless the third parties are present to aid in identifying stolen property.

Question 19

execution of warrant - scope of search

Answer 19

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.

Question 20

violation of knock and announce rule effect

Answer 20

will not result in the suppression of evidence otherwise properly obtained—the exclusionary rule does not apply here.

Question 21

execution of warrant - what can the police do to persons found on premises?

Answer 21

MAY detain occupants of the premises during a search. Limited to persons in the immediate vicinity of the premises when the warrant is being executed.

MAY NOT search persons found on the premises who were not named in the warrant UNLESS they have reason to believe any present person is armed and dangerous, may conduct terry pat down.

MAY NOT follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.

Question 22

name the exceptions to the 4th amendment warrant requirement

Answer 22

1) search incident to constitutional arrest

2) automobile exceptions

3) plain view

4) consent

5) Hot pursuit, evanescent evidence, emergency aid

6) Special Needs

Question 23

incident to constitutional arrest - police can search:

Answer 23

search the person and within person’s wingspan (where they might reach to obtain weapons or destroy evidence)

May sweep area if they believe accomplices may be present

Question 24

search incident to constitutional arrest - timing of search

Answer 24

contemporaneous in time and place, but not necessarily simultaneous

ex. police may search the interior of an automobile after securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested

Question 25

search incident to constitutional arrest - when can police search the passenger compartment of a car?

Answer 25

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

Question 26

search incident to constitutional arrest - determining the validity of a search involving "technological searches" (cell phones, blood alcohol tests, etc.)

Answer 26

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 27

search incident to constitutional arrest - testing blood alcohol

Answer 27

DUI arrest justifies BREATH test but NOT blood test.

Question 28

search incident to constitutional arrest - what can be searched on cell phone?

Answer 28

Can examine physical attributes of cell phone. strong interest in assuring that arrestees do not have weapons or contraband. May NOT examine the data on a cell phone without a warrant. Data cannot be used as a weapon.

Question 29

search incident to incarceration or impoundment

Answer 29

At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. police may make an inventory search of an impounded vehicle.

Question 30

automobile exception - when police can search the whole vehicle

Answer 30

if police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, hey may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.

Question 31

automobile exception - when the police can tow the vehicle

Answer 31

if warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later. if the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.

Question 32

automobile exception - if the vehicle is parked in the area around the suspects home

Answer 32

may not search the vehicle without a warrant.

Question 33

automobile exception - can police search passenger's belongings?

Answer 33

The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.

Question 34

automobile exception - when probable cause only to search a container in vehicle

Answer 34

If the police have probable cause only to search a container in a vehicle (for example, luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle.

Question 35

automobile exception - when must the probable cause arise

Answer 35

The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched.

Question 36

plain view exception - police may make a warrantless seizure when:

Answer 36

1) Are legitimately on the premises 2) Discover evidence, fruits or instrumentalities of crime, or contraband 3) See such evidence in plain view; and 4) Have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime

Question 37

consent - a warrantless search is valid if

Answer 37

police have voluntary consent. the right to withhold consent is not a prerequisite to establishing a voluntary consent.

Question 38

consent exception - scope of search

Answer 38

may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 39

consent exception - who has authority to consent?

Answer 39

Any person with an apparent equal right to use or occupy the property may consent to a search, 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. If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent

Question 40

Terry stop is:

Answer 40

a brief detention for the purpose of investigating suspicious conduct

Question 41

terry frisk is:

Answer 41

patdown of the outer clothing and body to check for weapons.

Question 42

Stop and frisk allowed when:

Answer 42

Stop without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity. Can require detainee to state their name Can conduct a frisk if the officer reasonably believes that the person may be armed and presently dangerous

Question 43

Stop and frisk - scope of intrusion

Answer 43

generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.

Question 44

stop and frisk - admissibility of evidence

Answer 44

During a patdown, 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, and such items are admissible as evidence.

Question 45

evanescent evidence exception

Answer 45

evidence that might disappear quickly if the police took the time to get a warrant

Question 46

hot pursuit exception

Answer 46

Police in hot pursuit (within 15 minutes) of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling. if the fleeing person is suspected of a misdemeanor, their flight does not always justify a warrantless entry into a home. The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry.

Question 47

emergency aid exception

Answer 47

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 48

administrative inspections and searches must have a warrant to search:

Answer 48

Inspectors must have a warrant for searches of private residences and commercial buildings BUT the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.

Question 49

administrative inspections and searches permitting warrantless searches (examples)

Answer 49

- to seize spoiled or contaminated food - searches of a business within a highly regulated industry - Inventory searches of arrestees or their vehicles pursuant to established department procedure - prisoners before being admitted into the general prison population, even of persons arrested for minor crimes - airline passengers prior to boarding - parolees and their homes—even without reasonable grounds for the search, at least as long as there is a statute authorizing such searches - government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct - Drug tests of railroad employees involved in an accident - Drug tests of persons seeking customs employment in positions connected to drug interdiction - Drug tests of public school students who participate in extracurricular activities

Question 50

public school searches - what is required_

Answer 50

A warrant or probable cause is NOT required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if: 1) It offers a moderate chance of finding evidence of wrongdoing 2) The measures adopted to carry out the search are reasonably related to the objectives of the search; and 3) The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 51

searches in foreign countries - does 4th amendment apply?

Answer 51

The Fourth Amendment does not apply to searches and seizures by United States officials in foreign countries and involving an alien, at least where the alien does not have a substantial connection to the United States.

Question 52

searches at the border - does 4th amendment apply?

Answer 52

Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the U.S. border, due to national sovereignty interests. Roving patrols inside the U.S. border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains undocumented aliens. Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion.

Question 53

opening international mail

Answer 53

Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

Question 54

is wiretapping and eavesdropping a search under the fourth amendment?

Answer 54

Yes.

Question 55

When may a warrant be issued to wiretap/eavesdrop

Answer 55

(1) probable cause, (2) suspected persons involved in the conversations to be overheard are named, (3) the warrant describes with particularity the conversations that can be overheard, (4) the wiretap is limited to a short period of time, (5) the wiretap is terminated when the desired information has been obtained, and (6) return is made to the court, showing what conversations have been intercepted.

Question 56

are pen registers covered by the fourth amendment?

Answer 56

not controlled by the Fourth Amendment BUT by statute judicial approval is required before a pen register may be used.

Question 57

Evidence obtained in a manner that shocks the conscience

Answer 57

inadmissible under the Due Process Clause. If a crime is induced by official actions that shock the conscience, any conviction stemming from those actions is unconstitutional