Search and Seizure

Question 1

If you SEE a search of

• a premise
• a thing
• or a person

Or a seizure

• Of a thing or person

ASK THE FOLLOWING THREE QUESTIONS?

Answer 1

1. Does the Fourth Amendment Apply?
2. If so, was the search or seizure Proper under the Fourth Amendment?
3. If not, is evidence obtained in violation of the Fourth Amendment admissible anyway?

Question 2

Question ONE

Does the Fourth Amendment Apply?

Overview…

Answer 2

The Fourth Amendment applies to search or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation of privacy!

Question 3

Search or Seizure

RULE

Answer 3

A search or seizure occurs when a government agent physically intrudes on a constitutionally protected area in order to obtain information OR violates an individual’s objective (reasonable) AND subjective (actual) expectation of privacy.

Question 4

Key Question to ask

to determine whether there is a

Search OR Seizure

1. When is there a reasonable expectation of privacy?

Answer 4

1. When is there a reasonable expectation of privacy?

• places listening device on public phone booth = search because subjective and objective expectation of privacy.
• no search if undercover agent gets def to confess - def takes on risk of disclosure

Question 5

Key Question to ask

to determine whether there is a

Search OR Seizure

2. When is there NO reasonable expectation of privacy?

Answer 5

2. When is there NO reasonable expectation of privacy?

Owners/Possessos have no reasonable expectation of privacy in things that are held out to the public.

So when things are searched and seized the 4th amendment does NOT apply.

• anything lawfully seen by the public
• A person’s voice, handwriting, fingerprints, or appearance
• Account information available to a bank or cell phone company (pen register)
• information gathered from public air space or in an open field
• paint scrapings from a car
• Abandoned property e.g. garbage left at the curb
• Smells detected from outside of a car or luggage at a public airport
• Devices widely/regularly available to the public

Question 6

Key Question to ask

to determine whether there is a

Search OR Seizure

3. Does Defendant have Standing

Answer 6

3. Does Defendant have Standing

Define: A person has standing to raise a Fourth Amendment challenge if she has an expectation of privacy in the thing searched or seized.

Question 7

When somone HAS and DOES NOT have Standing

Answer 7

The following persons have reasonable expectations of privacy:

1. An Owner or resident of the premises searched
2. An Overnight Guest in the place searched, if the place searched is an area he or she could reasonably be expected to occupy.

The following persons do NOT have a reasonable expectations of privacy

1. A individual who uses a residence for business only
2. An individual who stores an item (even one he owns) in an area in which he has no reasonable expectation of privacy e.g. drugs hidden in a girlfriend’s purse
3. As to a search of the car itself, “mere passengers”

Question 8

Key Question to ask

to determine whether there is a

Search OR Seizure

4. Governement Agent

Answer 8

4. Governement Agent

Police officers are the most obvious government agents. Less obvious examples inlude

• private citizens following police direction
• public school administrators
• security personnel deputized with the power to arrest

Question 9

Question TWO

The Fourth Amendment Applies

Does the Search or Seizure Satisfy the Fourth Amendment?

Answer 9

Overview: A search or seizure satisfies the 4th Amendment if it is properly conducted PURSUANT TO A VALID WARRANT or if an EXCEPTION TO THE WARRANT REQUIREMENT APPLIES.

Three methods for satisfying the Fourth Amendment are detailed below:

1. Valid Warrant + Proper Execution
2. Invalid Warrant BUT good faith from officer “saves it”
3. Exception to the Warrant Requirement

Question 10

The Fourth Amendment is Satisfied when…

(one of three ways)

THERE IS A VALID SEARCH WARRANT

Answer 10

A warrant is valid if it is issued by an Unbiased Magistrate and is supported by Probable Cause and Particularity (PUP)

1. Unbiased Magistrate - magistrate is “neutral and detached”

2. Probable Cause - facts and circumstances (not mere hunch or suspicion) w/in PO’s knowledge, a reasonable PO would conclude that an individual has committed a crime (to arrest them) or specific evidence of the crime would be found in a particular place (to be searched).

SC - PC exists when there is a “fair probability” or a “substantial change” of crimality. Needs to be an oath or affirmation (e.g. affidavit) to support this finding.

3. Particularity - the warrant is specific about the people or places to be searched or items to be seized.

Question 11

Wiretap Warrant

A valid warrant for a wiretrap MUST

Answer 11

1. Be supported by Probable Cause (that a specific crime has been committed) and particularity.
2. Name the persons whose conversation are covered by the warrant; and
3. Be of limited duration.

Question 12

Unreliable Ear Doctrine

Answer 12

You assume the risk that the person to whom you are speaking is recording you and have no expectation of privacy in the words you speak.

Question 13

Execution of a Search Warrant

A Government agent properly executes a valid warrant by complying with its terms and following the knock and announce rule.

Answer 13

1. Complying with the Terms - can only search and seize what is specifically described in the warrant.

1. Must be executed within a reasonable time.
2. MICHIGAN - A warrant to search the “premise” includes vehicles

2. Knock and Announce Rule - Officers must announce their presence and intention and wait a reasonable amount of time for occupants to answer before searching premises.

1. Failure to knock and announce generally does NOT trigger the exclusionary rule.
   - MICHIGAN has analyzed this under the “inevitable discovery” doctrine.

Question 14

An Arrest Occurs…

Answer 14

When a suspect submits to police custody

Question 15

An Arrest Requires

Probable Cause

(Defined)

Answer 15

A reasonable belief based on specific and articulable facts that a suspect has committed, is committing, or is about to commit a crime

Question 16

An Arrest Warrant is NOT required

Answer 16

• arrest someone in public space
• arrest someone police witness committing a crime; or
• arrest all occupants of a car when, during a traffic stop, a police officer discovers evidence of a crime that suggests a common criminal enterprice (e.g. sharing drugs)

Question 17

An arrest warrant is required to

Answer 17

1. Arrest a suspect in his home
2. Arrest a suspect if the suspect is in someone else’s home (plus a search warrant)
   - exception when no warrant is required = Exigent circumstances (hot pursuit or suspect, or the delay in obtaining warrant could likely result in destruction of evidence).

Question 18

Protective Sweep Doctrine

Answer 18

Allows officers to sweep the area within a dwelling adjacent to the room in which an arrest is made justified by the officer’s reasonable suspicion, based on specific and articulable facts that the adjacent rooms harbors someone who poses a danger to the arrest scence.

Question 19

The Fourth Amendment is Satisfied when…

(one of three ways)

Invalid Warrant BUT GOOD FAITH by the officer “saves it” and thus the evidence is not suppressed

Answer 19

Even if there is a defective search warrant or affidavit, good faith by an officer in executing the search warrant can usually “save” it.

Question 20

Exceptions where Good Faith does NOT save a defective seach warrant

(three)

Answer 20

1. Serious Affidavit Issue

(a) lacking indicia of PC as to render belief in its existence entirely unreasonable
(b) based on lies as it contains (1) a false statement made by an officer (2) the statement was made knowingly, intentionally, or w/reckless disregard for the truth (negligent statements do not count) and (3) the false statement was necessary to the PC finding.

2. Serious Warrant Issue - warrant is so facially deficient in particularity that the executing officers could not reasonably presume it is valid.

3. Serious Magistrate Issue - The magistrate abandoned his neutral position.

Question 21

The Fourth Amendment is Satisfied when…

(one of three ways)

THERE IS AN EXCEPTION TO THE SEARCH WARRANT REQUIREMENT

(ESPCAA)

Answer 21

1. Consent Exception
2. Plain View Exception
3. Exigent Circumstances
4. Search Incident to Lawful Arrest
5. Automobile Exception
6. Adminstrative Search

(ESPCAA)

Question 22

Exceptions to the Search Warrant Requirement

CONSENT Exception

Answer 22

Gen Rule - If one with actual or apparant gives consent voluntarily, officers may search the areas to which they understand the consent to extend without a warrant.

Who can legally give consent?

1. Children are legally unable to give consent
2. Adults can give consent to searching a child’s room, but not locked areas where the child has a reasonable expectation of privacy.
3. Landlords, hotel proprietors, and employees cannot consent to the search of private areas.
4. Co-tenants can consent to a search of the areas over which they have co-occupancy or exert common control, but other co-tenants who are present may revoke the consent.

Question 23

Exceptions to the Search Warrant Requirement

PLAINVIEW EXCEPTION

Answer 23

Rule - Officer, who is lawfully present in the area that he is in (and complying w/the permissible scope of that intrusion) may seize an item if it “immediately apparent that the item is contraband or evidence of a crime.”

This extends to other senses too (plain smell, plain feel)

Question 24

Exceptions to the Search Warrant Requirement

EXIGENT CIRCUMSTANCES/HOT PURSUIT

(Three Scenarios: Hot Pursuit, Emergency, Evidence that will Disappear)

Answer 24

1. Hot Pursuit - Police in hot pursuit may follow the suspect onto private property without a warrant and detain him only if there is probable cause to believe he has committed a crime and that he is in a particular place.

2. Emergency If officers must enter private property to treat or prevent serious injury

3. Evidence will Disappear - No warrant is required if evidence of a crime will likely disappear before a warrant can be obtained.

Question 25

Exceptions to the Search Warrant Requirement SEARCH INCIDENT TO LAWFUL ARREST EXCEPTION

Answer 25

**At the time** of a lawful arrest an officer may conduct certain **searches of the arrestee** (including his person, clothing, wingspan) **without a warrant** IF ARRESTEE IN A VEHICLE **If the arrestee is unsecured** - police can search the interior cabin, including closed containers, wingspan - but NOT the trunk. Regardless of if the officer has reason to believe evidence of a crime is in the car. **If the arrestee is secured** - only search the vehicle if tey reasonable believe it contains evidence of the crime for which suspect was arrested.

Question 26

Exceptions to the Search Warrant Requirement AUTOMOBILE (VEHICLE) EXCEPTION

Answer 26

Because automobiles are **highly mobile** and the **expectation of privacy in them is lower**, officers can search an automovile any time they have **probable cause** to believe that evidence, instrumentalities, or fruits of a crime exist within it. - applies to motorcycles, boats, jet-skis etc. - search can include anywhere in the vehicle where evidence could reasonably be found, including trunk and closed containers.

Question 27

Differences between Search Incident to Arrest in a Car and the Automobile Exception

Answer 27

different than search incident to arrest because search goes beyond wingspan but only where there is probable cause to believe evidence of the a crime is in the vehicle. Triggers are different For search incident to arrest, there must be an arrest of the suspect. The suspect himself may be patted down and search as well. For the automobile exception, there simply needs to be probable cause to search the automobile.

Question 28

Exceptions to the Search Warrant Requirement Adminstrative Search

Answer 28

Standard is **reasonableness.** Search conducted according to neutral criteria and are not cnoducted for the purpose of investigation. 1. Police are allowed to search arrestees who are booked into jail and impounded vehicles without a warrant. Must comply w/dept protocols, search motiviated by officer safety and not to gather evidence. 2. Parolees agree ti warrantless searches of their person and home for any reason or no reason at all. 3. Caretaker exception - police may always search items given to them to care for. 4. for any reason or no reason persons seeking to cross the U.S boarder are subject to routine questioning and searching. Security screenings at airports fall under this category too. 5. Public School Searches - public school officials can search students and their personal effects upon reasonable suspicion. Reasonable suspicion exists when there is a moderate chance of finding evidence of wrongdoing (including violation of school rules). 6. Vehicles encountering an informational roadblock or sobriety checkpoint: 1. The checkpoints are narrowly tailored to the investigative purpose 2. Stops are brief and systematic, not arbitrary; and 3. Interrogations are specific to the crime about which information is sought. 7. Random Drug Testing a. Public school children involved in any extracurricular activities b. Customs agents who carry firearms c. Customs agents who are involved in drug interdiction d. Railroad workers involved in an accident or who violates safety rules.

Question 29

**Terry Stop and Frisk Doctrine** (something less than a *search* so a lesser standard is required) The 4th Amendment is still implicated.

Answer 29

Under the Terry Stop and Frisk doctrine, police may **briefly detain** a suspect they reasonably believe is involved in criminal activity (stop) and conduct a *non-intrusive search* of his person (frisk) if they **reasonably believe** he is **armed and dangerous**.

Question 30

Stop and Frisk The "Terry" standard Keyword is **reasonableness** (lower standard than probable cause)

Answer 30

1. For a **Terry Stop** you need a **Reasonable Suspicion** that criminal activity is afoot (you can only stop briefly) 2. For a **Terry Frisk**, you need a **Reasonable Belief** that the suspect is armed and dangerous (you can only frisk for weapons).

Question 31

Stop and Frisk The "Terry" standard **SEIZURE**

Answer 31

An individual is seized when a reasonable person would believe she was not free to leave or reuse to answer the officer's questions. This is a totality of the circumstances test. Factors include - whether office specifically tells ger sge can refuse to talk - The officer's demeanor, tone, and language - Whether the officer displays a weapon - Whether there is a physical touching of the citizen - Whether there is one officer or several

Question 32

Stop and Frisk The "Terry" standard **REASONABLE SUSPICION**

Answer 32

Reasonable suspcicion exists when a reasonable person (objective standard) would believe, based on specific and articulable facts (not a mere hunch), that criminal activity is present. It is a lesser standard than probable cause.

Question 33

Stop and Frisk The "Terry" standard **CAR STOPS**

Answer 33

- During a traffic stop, police may order all occupants out of the car. - dog sniff for drugs (w/o reasonable suspicion or probable cause) provided that the sniff does not prolong the stop longer "than the time reasonably required to complete the mission" of issuing the ticket. - The driver and any passengers have standing to challenge a **traffic stop** which constitutes a seizure of all of them for 4th Amendment purposes.

Question 34

Did it become more than just a stop?

Answer 34

Sometimes a **stop** becomes the equivalent of an **arrest.** Factors such as the degree of intrusion, the amount of force, and how long the suspect was stopped will be considered. "mere passengers" in a car do not have standing to challenge a *search* of a car because they do not have a reasonable expectation of privacy. They can challenge the stop itself.

Question 35

Terry Frisk "The Pat Down" of a suspect's body and clothing justified by officer SAFETY...

Answer 35

Factors which create reasonable suspicion 1. Suspect is believed to be involved in a crime involving a weapon or the trafficking of large amounts of drugs. 2. Suspect's behavior, including aggressiveness or sudden movements 3. Bulge under clothing 4. Presence in a high crime neighborhood, *when combined with other factors and officer's common sense.* - Frisk must be limited to an intrusion reasonably designed to discover guns. - Any weapons found can be seized - along with anything which the officer "*by plain touch" aka w/o manipulating the object*, has probable cause to believe is contraband.

Question 36

Terry Frisk CAR FRISKS

Answer 36

If, during a routine traffic stop, and officer reasonably believes a suspect is armed and dangerous, he may search the interior of the vehicle for weapons that would be accessible to the driver, including those closed containers.

Question 37

Summary of when police can search YOUR DREAM CAR without a warrant (5 ways **CASPI**)

Answer 37

**1. Plain view doctrine/exception** - can seize contraband in car if it is in officer's plain view. **2. Search incident to arrest exception** - if suspect is secured, can search vehicle (closed container but not trunk) for evidence relating to the crime. If suspect is NOT secured, can search vehicle ("wingspan" but not trunk for all evidence at all. **3. Automobile Exception -** Can search vehicle upon probable cause that evidence of a crime is inside (incluing the trunk) **4. Inventory Exception** - Can search vehicle upon probable cause that evidence of a crime is inside (including trunk). **5. Consent**

Question 38

Review: If the search or seizure was *properly conducted pursuant to a valid warrant OR if an exception to the warrant requirement applies*, the evidence is admsisible under the 4th amendment.

Answer 38

If the search or seizure does not satisfy this test, move on and ASK Is the evidence obtained in violation of the Fourth Amendment admissible anyway? THE EXCLUSIONARY RULE

Question 39

Summary of the Exclusionary Rule DIRECT and INDIRECT evidence

Answer 39

DIRECT Evidence - the exclusionary rule makes both physical and testimonial evidence obtained in deliberate, reckless, or grossly negligent violation of the Fourth *inadmissible against the person whose rights were violated*. Purpose is to deter police from acting improperly. INDIRECT Evidence - The fruit of the poisonous tree doctrine. Evidence that directly or indireclty derives from illegally obtained information is excluded from the prosecutor's case-in-chief under the "fruit of the poisonous tree" doctrine.

Question 40

Exception to the Exclusionary Rule "Tainted fruit" may still be admitted under three circumstances:

Answer 40

**1. Inevitable Discovery** - evidence initially discovered through an unlawful search, but that would have been discovered by lawful means, is admissible. **2. Independent Source** - Evidence initally discovered during an unlawful search, but later obtained independently through activities untainted by the illegality is admissible. **3. Taint Disappears** - due to time of intervening circumstances (attenuation), either by passage of time or other intervening circumstances, to dissipate the taint.

Question 41

When does the exclusionary NOT apply?? | (4 ways)

Answer 41

**1. Standing** - where the person who is trying to suppress the evidence *does not have standing to challenge the seach*. Only victims of the actual violation can challenge it. **2. Impeachment** - where the exclusionary rule prevents the prosecution from using evidence in its case-in-chief, *evidence can still be used to impeach the def's testimony*. **3. Civil & Other Proceedings** - Grand juries, deportation hearings, parole revocation hearings, can use unconstitutionally-obtained evidence. **4. Knock and announce rule** - violations of this rule will NOT result in exclusion of evidence.