Search and Seizure

Question 1

Who is considered a government agent for the purpose of the 4th Amendment?

Answer 1

1) publicly paid police, on or off duty;
2) private citizens, if (and only if) they are acting at the direction of the police;
3) private security security guards, but only if they are deputized with the power to arrest (most common example: campus security at public universities);
4) public school admnistrators, e.g., principals; vice-principals.

Question 2

What items or areas are protected by the 4th Amendment?

Answer 2

The 4th Amendment expressly protects individuals from unreasonable searches and seizures of their:

a) persons (i.e. bodies);
b) houses (including hotel rooms);
c) papers (e.g., personal correspondence); and
d) effects (personal belongings, e.g. purshes, backpacks, cars)

The protection of “houses” includes the “curtilage,” an area adjacent to the home “to which the activity of home life extends.” Examples: front porch, backyard enclosed by a fence.

Question 3

What does the 4th Amendment not protect?

Answer 3

a) Physical characteristics (e.g. the sound of your voice, the style of your handwriting);
b) Odors that emanate from your car or your luggage
c) Garbage left at the curb for collection
d) Open fields: anything that can be seen in or across the open fields.
e) Financial records held by a bank
f) Airspace: anything that can be seen below when flying in public airspace.
g) Pen registers: devices that list the telephone numbers someone has dialed.

Question 4

What government conduct implicates the 4th Amendment?

Answer 4

There are two ways in which searches and seizures by government agents can implicate an individual’s 4th Amendment rights:

1) Trespass-based test: The agent physically intruded on a constitutionally protected area in order to obtain information;

OR

2) Privacy-based test: The agent’s search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy.
a) To satisfy the privacy-based test, an individual must show: i) an actual or subjective expectation of privacy in the area searched or items seized; and ii) that the privacy expectation was be “one that society recognizes as reasonable.”
b) A police search is presumptively unreasonable under the 4th Amendment when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion.

Question 5

What factors do you look at to determine whether the search or seizure was conducted pursuant to a proper warrant?

Answer 5

Ask **four **questions:

• Was the warrant issued by a neutral and detached magistrate?
• Is the warrant supported by probable cause and paticularity?
• If not, did police officers rely on a defective warrant in “good faith?”
• Was the warrant properly executed by the police?

Question 6

When do you know whether a warrant for a search was issued by a “neutral and detached” magistrate?

Answer 6

A judicial officer ceases to be sufficiently “neutral and detached” for 4th Amendment purposes when her conduct demonstrates bias in favor of the prosecution.

Question 7

When is a warrant supported by probable cause? What are the NY distinctions?

Answer 7

Probable Cause: requires proof of a “fair probability” that contraband or evidence of crime will be found in the area searched.

a) Hearsay is admissible.
b) Informant’s Tips: police may rely on information obtained through an informant’s tips, even if the information is anonymous. The sufficiency of the informant’s tip rests on corroboration by the police of enough of the tipster’s information to allow the magistrate to make a “common sense, practical” determination that probably cause exists based on the totality of the circumstances.

New York: continues to use Aguilar-Spinelli test, where the government must establish two things: (1) the informant’s reliability or veracity; and (b) his or her basis of knowledge. When the informant has not revealed his basis of knowledge, probable cause may be established through police observation that confirms sufficient detail suggestive of, or directly related to, **the criminal activity in question.

Question 8

When does a search warrant satisfy the particularity requirement?

Answer 8

To satisfy the particularity requirement, the search warrant must specify two things:

a) the place to be searched; and
b) the item to be seized.

Question 9

In New York, what happens if a warrant is invalid due to the absence of probable cause or particularity?

Answer 9

The warrant is invalid and **cannot **be saved if the officer relied on in good faith (as you can do in MBE criminal procedure).

Question 10

When can an officer’s “good faith” save a defective search warrant? What are the exceptions?

Answer 10

An officer’s “good faith” overcomes constitutional deficits in probable cause and particularlity. **However, **there are four categorical exceptions to the “good faith” doctrine:

1) The affidavit supporting the warrant application is so *egregiously *lacking in probable cause that no reasonable officer would have relied on it.
2) The warrant is so facially deficient in particularlity that officers could not reasonably presume it to be valid.
3) The affadavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding.
4) The magistrate who issued the warrant is biased in favor of the prosecution.

Question 11

How do you know if the search warrant was properly executed by the police?

Answer 11

There are two aspects of this inquiry:

1) Compliance with the warrant’s terms and limitations:
a) In executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant.
b) When executing a search warrant, officers may detain occupants found within or immediately outside the resident at the time of the search.
2) “Knock and Announce” Rule: This rule requires police to “knock and announce” their presence and their purpose before forcibly entering the place to be searched, unless the officer* reasonably* believe doing so would be:
a) futile; OR b) dangerous; OR; c) would inhibit the investigation.

Question 12

What are the eight exceptions to the warrant requirement?

Answer 12

They can be remembered with the word “ESCAPIST” -

Exigent Circumstances

Search Incident to Arrest

Consent

Automobile

Plain View

Iventory

Special Needs

Terry “Stop and Frisk”

Question 13

What does “exigent circumstances” refer to?

Answer 13

There are three types:

a) Evanescent Evidence: evidence that would dissapate or disappear in the time it would take to get a warrant.
b) ** “Hot Pursuit” of a Fleeing Felon:** Hot pursuit allows police officers to enter the home of a suspect or a third party to search for a fleeing felon. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.
c) “Emergency Aid” exception: Police may enter a residence without a warrant when there is an objectively **reasonable basis for believing that a person is in need of emergency aid to address or prevent injury.

Question 14

What circumstances allow for search incident to arrest? What are the NY distinctions?

Answer 14

a) Arrest must be lawful.
b) Timing: The search must be contemporaneous in time and place with the arrest.
c) Geographic scope: the wingspan, which includes the body, clothing, and any containers within the arrestee’s immediate control without regard to the offense for which the arrest was made.

New York: To search containers within the wingspan, an officer must spect that the arrestee is armed.

d) Automobiles searched incident to a custodial arrest: the permissible scope is the interior cabin, including closed container, but not the trunk. However, once an officer has “secured” an arrestee, the officer can search the vehicle *only *if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.

New York: Once the occupant is out of the car, police cannot search containers inside the vehicle to look for weapons or evidence of crime.

Question 15

When is consent to a warrantless search valid?

Answer 15

**Standard: **Consent must be voluntary and intelligent. For consent to be valid, police officers do not need to tell someone that she has the right to refuse consent.

Scope of consent: Consent to search extends to all areas for which a reasonable officer would believe permission to search was granted.

“Apparent” authority: If a police officer obtains consent to search from someone who lacks “actual” authority to grant it, the consent is still valid under the 4th Amendment, provided the officer reasonably believed that the consenting party had “actual” authority.

**Shared premises: **When adults share a residence, any resident can consent to a search of common areas within it. However, if co-tenants who are present on the premises disagree regarding consent to search common areas, the objecting party prevails, as to areas over which they share dominion and control.

Question 16

What is the standard and the scope of the “automobile” exception to warrantless searches?

Answer 16

**Standard: **Police officers need probable cuse to believe that evidence of a crime or contraband will be found in the vehicle.

Scope: Police officers can search the entire vehicle and they may open any package, luggage, or other container that may *reasonably contain *the item(s) for which there was probable cause to search.

Traffic stops and auto searches: Sometimes what begins as a routine traffic stop results in a search of all or part of the vehicle. For the search to be lawful, an officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before initiating the search.

Question 17

What are the requirements for the “plain view” exception to warrantless search?

Answer 17

The three requirements for seizure of an item in plain view:

a. lawful access to the place from which the item can be plainly seen;
b. lawful access to the item itself; AND
c. the criminality of the item must be immediately apparent.

Question 18

What are inventory searches, when they are conducted, and when are they constitutional?

Answer 18

Inventory searches most commonly occur in two contexts:

1) Arrestees: when they are booked into jail;
2) Vehicles: when they are impounded.

Inventory searches are constitutional, provided:

1) the regulations governing them are reasonable in scope;
2) the search itself complies with those regulations; AND
3) the search is conducted in good faith; that is, it is motivated solely by the need to safeguard the owner’s possessions and/or to ensure officer safety.

Question 19

What is a Terry stop and what are the requirements?

Answer 19

A *Terry *stop is a brief detention or “seizure” for the purpose of investigating suspicious conduct. They can take place anywhere.

You are **seized **for 4th Amendment purposes:

a) an individual is seized for 4th Amendment purposes when, based on a totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer questions.
b) In evaluating whether an individual has been seized during questioning by law enforcement, you should consider:
i) whether an officer brandishes a weapon;
ii) the officer’s tone and demeanor when interacting with the person questioned;
iii) and whether the individual was told she had the right to refuse consent.

**Police Pursuit and “Seizure”: **(a) when being pursued by a police officer, an individual is seized only if he submits to the officer’s authority by stopping or if the officer physically restrains him.

New York: Police pursuit is a seizure in and of itself.

Traffic Stops: In a traffic stop, both the driver and the passengers are seized, such that either can challenge the legality of the stop. In a traffic stop, the officer may in her discretion, order both the driver and the passengers out of the car. Dog sniffs at traffic stops are permissible proved the “sniff” does not prolong the stop unreasonably.

Question 20

What is a Terry frisk and what are its requirements? What are the NY distinctions?

Answer 20

**Definition: **It is a pat-down of the body and outer clothing for weapons that is justified by an officer’s belief that a suspect is armed and dangerous.

Seizure: If, during a Terry frisk, an officer finds something she reasonably believes to be a weapon, it can always be seized. If, instead, the officer finds something she recognizes as contraband **without manipulating the object, **she can seize it as well.

New York: Officers can seize an item only if it reasonably appears to be a weapon.

Car “Frisks”: When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cab of the suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden.

“Protective Sweeps”: When making an in-home arrest, police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety.

Question 21

What evidentiary standard applies to *Terry *stops and frisks?

Answer 21

Reasonable suspicion which is less than probable cause.

**In Terry stops, **it requires specific and articulable facts that inform an officer’s belief that criminal activity is present.

NOTE: An officer’s subjective intent is irrelevant in evaluating the legality of the stop; the 4th Amendment is concerned solely with its objective reasonableness.

In Terry frisks, it requires specific and articulable facts that suggest a suspect is armed and dangerous.

Remember: A Terry frisk is justified by a concern for officer safety only; it is not a general search for criminal evidence.

An infornmant’s tip can satisfy this evidentiary standard, provided the tip contains sufficient predictive information, corroborated by the police to establish the informant’s reliability.

Question 22

What evidentiary standards apply in “protective sweeps”?

Answer 22

Whenever they are making an in-home arrest, officers have the authority, without probable cause or reasonable suspicion, to look in areas adjoining the place of arrest from which an attack could be immediately launched.

To justify a “sweep” of more remote areas, the arresting officers must have additional facts sufficient to allow them to conclude that an individual who may threaten their safety is present in the area swept.

Question 23

What are the different categories of “special needs” of law enforcement allow warrantless searches?

Answer 23

**Drug Testing: **allowed in a variety of contexts including railroad employees following an impact accident, customs agents responsible for drug interdiction; *and *public school children who participate in any extracurricular activities.

Parolees: warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole.

School searches: warrantless searches of the person and the “effects” of public school children are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is reasonable at its inception and is not excessively intrusive, in light of the age and sex of the student and the nature of the infraction.

Border searches: Neither citizens nor non-citizens have any 4th Amendment rights at the border, with respect to routine searches of persons and effects.

“Non-law-enforcement primary purpose” test: The “special needs” doctrine does not include law enforcement programs or practices whose primary purpose is to gather criminal evidence for general use by law enforcement.

Question 24

What is the exclusionary rule?

Answer 24

Evidence, whether physical or testinomial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.

Question 25

What are the 4th Amendment limits on the exclusionary rule?

Answer 25

1) Case-in-chief vs. cross-examination: unconstitutionally obtained evidence is excluded from the prosecutor’s case-in-chief only; it may be introduced to impeach the defendant’s testimony on cross-examination.

2) “Knock and Announce” violations: A failure to comply with the “knock and announce” rule does not require supression of evidence that is subsequently discovered.

3) Police Error: to trigger the exclusionary rule, erroneous police conduct must be deliberate, reckless, or grossly negligent.

4) Officers’ “reasonable” mistakes: the exclusionary rule does not apply to evidence obtained erroneously when executing a search warrant, provided an officer’s mistake was reasonable.

Question 26

What is the “fruit of the poisonous tree” doctrine?

Answer 26

Direct Evidence: Most of the unlawfully seized evidence that we have addressed thus far has been directly linked to the constitutional violation, e.g. evidence gathered pursuant to a search warrant that violates the 4th Amendment.

Derivative Evidence: evidence (both physical and testimonial) can also be obtained by exploiting prior unconstitutional conduct, e.g. a confession obtained as a result of earlier unlawful arrest. This derivative or “secondary” evidence is called “fruit of the poisonous tree” and like “direct” evidence obtained in violation of the 4th Amendment, it is inadmissable in the prosecutor’s case-in-chief.

Question 27

How can prosecutor’s nullify the “fruit of the poisonous tree”?

Answer 27

Prosecutors must show a break in the causal link between the original illegality and the criminal evidence that is later discovered. There are three doctrine that can achieve the requisite break:

1) Independent Source: This doctrine applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality.

2) Inevitable Discovery: This doctrine applies where the evidence would necessarily have been discovered through lawful means.

3) Attenuation: This doctrine admits derivative evidence where the passage of time and intervening events “purge the taint” of the original illegality and restore the defendant’s free will.

Question 28

What are the four requirements for a valid wiretap warrant?

Answer 28

Mnemonic: Screen Telephone Calls Carefully

1) Suspected persons: the warrant must name the suspected persons whose conversations are to be overheard.

2) Time: The wiretap must be for a strictly limited time period. In New York, the wiretap warrant expires after 30 days.

3) Crime: There must be probable cause that a specific crime has been committed.

4) Conversations: The warrant must describe with particularlity the conversations that can be overheard.

Question 29

What is the “unreliable ear” doctrine?

Answer 29

If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th Amendment claim; you assume the risk that the other party will not keep your conversations private.