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Flashcards in Search and Seizure Deck (100)
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General Summary

  • evidence obtained as result of unreasonable search or seizure cannot be used to prove a criminal defendant’s guilt.


Which Actors Matter for Fourth Amendment Purposes

  • For something to be a search, it must have been executed by a government agent.
  • There are two important categories of government agents.


Two Categories of Government Agents

  1. publicly paid police on or off duty;
  2. private citizens if and only if they are acting at the direction of the police.


Private Security Guards and Government Agents

private security guards generally are not government agents.


Definition of a Search

  • any official action that intrudes upon a person’s reasonable expectation of privacy


effect of police conduct that is deemed not to be a search

  • If it’s not a search, police can do it.


Examples of Police Conduct Not Constituting a Search

  1. aerial surveillance of a fenced yard
  2. examination of trash left in yard
  3. determining numbers dialed from residential home (“pen register”) (but not the content of the convos)
  4. having a dog sniff luggage in airport
  5. account records (e.g. bank records) held by a third party
  6. the sound of your voice
  7. odors emanating from your car or luggage


Examples of Police Conduct Constituting a Search

  1. rigorous squeezing of luggage in a bus overhead rack
  2. thermal imaging scan of residence
  3. attaching a tracking device to a vehicle and using it for long-term monitoring of the vehicle’s location
  4. bringing a drug-sniffing dog onto the porch of a house


Plain View Doctrine

  • officers merely exercise their right to engage in “plain view” and do not search if they:
  1. reach a location without violating the fourth amendment; and
  2. simply look at something in open view


Open Fields

  • Not a search if officers go upon any unoccupied or undeveloped area of land that is not part of a home's curtilage
    • curtilage:area surrounding and used in connection with a residence
      • examples of curtilage: back yard enclosed by a fence; front porch


How to Analyze a S/S question if you're on the fence about whether the conduct was a search

ask yourself if the supreme court can find themselves in the D’s shoe. If so, it’s probably a search.


Requirements for a Search to be Reasonable

  1. for a search to be “reasonable”, two general requirements:
    1. must be pursuant to a valid search warrant (but exceptions); and
    2. must be based on probable cause.


Probable Cause Definition for a Reaosnable Search

Facts from which a reasonable person would conclude that there is a fair probability that seizable items will be found in the premises.


Reasonable Searches

Probable Cause Proof Requirement

  • Must have proof of a fair probability that contraband or evidence of crime will be found in the area searched
  • Hearsay is admissible for determining probable cause


Probable Cause and Informants

  1. Police may rely on info obtained from an informant’s tip, even if the information is anonymous.
  2. The sufficiency of the informant’s tip rests on the police corroborating enough of the tipster’s information to allow the magistrate to make a “common sense practical” determination that probable cause exists
    1. if police cite number of times where warrant was reliable, take note


Drug Dogs and PC during Traffic Stops

  1. During a routine traffic stop, a dog alert to the presence of drugs creates PC to search the car.


Reasonableness of DNA Cheek Swab

  1. When police arrest for a “serious offense,” it is reasonable to take and analyze a cheek swab of DNA
    1. serious offense not defined


Items Subject to Seizure

  1. contraband (something illegal to possess)
  2. “fruits” of crime- things you got bc of the crime
  3. instruments of crime
  4. evidence that a crime was committed or that a particular person committed it (“mere evidence”) e.g. you did the crime in a red shirt. Shirt seizable


Warrant Definition

judicial order authorizing search and seizure


Information that a Warrant Must be Issued Upon

  • Warrant must be issued on information constituting “probable cause”


Warrant Affidavit Requirement

  1. Affidavit must set out facts from which issuing magistrate can make independent judgement that probable cause exists


Warrant Specificity Requirement

  1. Warrant must describe specifically both:
    1. place to be searched; and
    2. items to be searched for and seized.


General Warrant Rule

  1. No “general warrants”
    1. can’t authorize fishing expedition
    2. e.g. can’t be “for evidence linked to the murder”


Announcement/No Knock Entry Rule

  1. before entering premises, officers must “knock and announce,” and give occupants opportunity to admit the officers.


Announcement/No Knock Entry Rule Exception

  1. if officers had reasonable suspicion that occupants inside would either resist with force or remove/destroy items for which warrant is issued.


Announcement/No Knock Entry Examples

  1. Deemed reasonable when PC occupant was dealing drugs, had violent criminal history, and kept a cache of weapons in the home
  2. But, unreasonable when person just a drug manufacturer with no other aggravating circumstance


Scope of Search

  1. Search must be limited to both:
    1. place described; and
    2. within that place, those locations where described items might reasonably be expected to be located.


Items Subject to Seizure

  1. Officer can seize:
    1. items reasonably believed to be those described; and
    2. other items found in “pain view” during search if PC exists to believe they are seizable.


Seizure and Plain View

  1. Officers executing a warrant can seize some undescribed items they discover in “plain view” during search.
  2. Plain view- can’t do anything to find that item other than observe it while in the process of searching what you’re searching for.


When Plain View does not Apply

  1. Plain view seizure rule does not apply if officers are searching improperly