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My Set 2
Terms in this set (390)
Requires warrant based on PC for a search or arrest
Katz v. U.S.
Government's electronically listening to and recording D's conversation in a phone booth constituted a search.
Changed test from trespass to reasonable expectation of privacy.
1. Proximity of area to home
2. Whether area is enclosed with home
3. Nature of uses for area
4. Steps taken to protect area from observation by passersby
U.S. v. Jones
Police putting a GPS device on D's vehicle and tracking D's movements for more than 28 days constituted a search.
Katz did not repudiate trespass. Analysis should simply add reasonable expectation of privacy to trespass.
What must the police do to initiate a pen register or a trap and trace of phonecalls?
Not a search; however, must obtain court order.
Must show that you have a REASONABLE BASIS to believe that unlawful activity is going on to get judge to sign order.
U.S. v. Watson
A judge may issue a search warrant only if there is PC. Police can search and arrest in a situation where a warrant is not required only if there is PC.
Illinois v. Gates -analyze R/S p342 ALvWhite FLvJLAnon. Tipster) J.L./White
A determination of PC should be made using a TOTALITY OF THE CIRCUMSTANCES analysis. In this case, which involved police receiving an anonymous letter about a couple drug use, verifying the details in the letter, and then requesting a warrant, the informant's VERACITY, RELIABILITY, AND BASIS OF KNOWLEDGE were factors taken into account.
Required information for warrant
1. Person or property being searched, seized, or tracked; location
2. Oath of affirmation from party requesting warrant and any party upon whose testimony warrant is being based
Those present when a search warrant is executed (non-vehicular)
1. Cannot be searched without PC particularized to that person
2. May be detained in the immediate vicinity of the premises depending on circumstances
3. May not be detained when a distance beyond the immediate vicinity of the property being searched just to ensure the safety and efficiency of search
Mistakes and warrants
If a mistake is made in executing a warrant, the search is permissible as long as the police action is REASONABLE.
Standard for PC
Objective; focuses on what the REASOANBLE officer could have done in the circumstances.
D's argued that the officer's asserted grounds for approaching his vehicle to give a traffic warning were PRETEXTUAL or pretense or contrived. The argument was irrelevant because the subjective intent of the police officer was irrelevant.
6 MAJOR EXCEPTIONS TO SEARCH WARRANT REQUIREMENT
1. Exigent circumstances (hot pursuit, safety or emergency aid, preventing destruction of crime)
2. Plain view (and plain touch and plain smell)
3. Automobile exception (PC that vehicle contains contraband, traffic stop, arrest)
4. Searches incident to arrest with protective sweeps
5. Inventory searches
Payton v. N.Y.
An officer may not make a warrantless, nonconsensual entry into a suspect's home to make a felony arrest absent exigent circumstances. Must have an arrest warrant to enter a home.
Safety or Emergency Aid
Officer may enter home without warrant when he has an OBJECTIVELY REASONABLE BASIS to believe that an occupant is seriously injured or IMMINENTLY threatened with such injury.
Plain View Doctrine (3 parts)
1. Officer has to observe the object in question from a LAWFUL VANTAGE POINT first.
2. Then, officer must have a RIGHT OF PHYSICAL ACCESS from that lawful vantage point to the place where the object is located.
3. The officer must also have PC to believe that the object in question is something that she can seize.
Minn. v. Dickerson
During a protective patdown, if an officer feels something that is IMMEDIATELY APPARENT as contraband, then he may seize it. Note: He must first have RS to conduct that patdown (Terry v. Ohio).
House or car factors
2. Readily mobile or elevated on blocks?
4. Connected to utilities?
5. Access to roads?
3 situations in which automobile exception to search warrant requirement applies
1. If officer has PC to believe that vehicle contains contraband or evidence of illegal activity, the officer can search the car, containers within the car, and the trunk (California v. Acevedo) and driver's and the passengers' personal belongings without a showing of individualized PC for each one
2. If officer lawfully stops someone (traffic stop), he can order the driver and passengers to exit (Pennsylvania v. Mimms), search those areas in the car where weapons might be hidden if he REASONABLY BELIEVES, BASED ON SPECIFIC AND ARTICULABLE FACTS, that the person being stopped is dangerous and may gain immediate control of weapons (Michigan v. Long).
3. If an officer arrests someone, he can do a warrantless search the car If the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or If it is reasonable to believe that the vehicle contains evidence of the offense for which the arrest was made (Arizona v. Gant).
Chimel v. Calif.
When officers arrest a person in a residence, they may search his person as well as the area within his immediate control or the "grab area."
Maryland v. Buie
When the police arrest a person, they may conduct a protective sweep of the premises if they have REASONABLE BELIEF, BASED ON SPECIFIC AND ARTICULABLE FACTS, that a person might be there who poses a threat to them. May only extend to places where a person could be found.
Purposes of Inventory Searches
1. Protect owner's property
2. Protect police against claims
3. Protect police from danger
Schneckloth v. Bustamonte
The question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the TOTALITY OF THE CIRCUMSTANCES. While the suspect's knowledge of the right to refuse is a fact to be taken into account, it is not a prerequisite to establishing a voluntary consent.
Other factors that may be considered when determining whether consent to a search was voluntary
1. Application of force
2. Intimidating movements
3. Brandishing of weapons
4. Overwhelming show of force
5. Blocking of exits
8. Authoritative tone of voice
Searches When There Are Special Needs
A special category of searches where warrants do not need to be obtained and often where less than PC is required because of a significantly reduced expectation of privacy:
1. Admin. Searches
2. Border crossing
5. Government ee's
6. Drug testing
7. DNA testing
8. Searches of jails and prisons
9. Searches of those on parole and probation
Warrantless administrative inspections are reasonable as long as three criteria are met (Burger)
1. Substantial gov't interest that informs the regulatory scheme pursuant to which the inspection is made.
2. Necessary to further that regulatory scheme.
3. Statute's inspection program must provide a constitutionally adequate substitute for a warrant.
U.S. v. Watson
Particularly in public place, if officer has PC he can arrest without warrant.
Three levels of police interaction
1. Consensual encounter (no requirement)
2. Stop (RS); may frisk if RS to believe person armed and dangerous
3. Arrest (PC); may search incident to arrest
U.S. v. Mendenhall
Established test to determine whether stop has occurred (aka the REASONABLE SUSPECT TEST):
A person has been seized for purposes of the Fourth Amendment only if, in light of all the circumstances surrounding the incident, a RP would have believed that he or she was not free to leave.
Factors to determine whether seizure occured
1. Whether there was a threatening presence of several officers
2. Whether the officer displayed a weapon
3. Whether there was some physical touching of the person of the citizen
4. Whether the use of language or tone of voice indicated that compliance might be compelled
Hunch--RS--Preponderance of the evidence (51%)
Less demanding requirement than PC, but officer must still be able to point to SPECIFIC AND ARTICULABLE FACTS, which taken together with the rational inferences from those facts, reasonably warrant the intrusion. Courts must look to the TOTALITY OF THE CIRCUMSTANCES.
RS and Tipsters
RS, like PC, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors--quality and quantity--are considered in the "totality of the circumstances--the whole picture," that must be taken into account when evaluating whether there is RS. One strong prong may make up for the other weak prong.
For D to assert a Fourth Amendment violation, his or her own expectation of privacy must have been violated.
Exceptions to Exclusionary Rule
1. Good faith
3. Independent source
4. Inevitable discovery
U.S. v. Leon
Exclusionary rule does not apply if police REASONABLY rely on an invalid search warrant to conduct a search of seizure.
Test to determine whether one is "in custody"
.Whether a RP in suspect's position would believe that he was or was not in custody at the moment--an objective standard.
Requirements for a Warrant:
Warrants must be 1) issued by a neutral and detached magistrate, 2)
based on probable cause, 3) specific, 4) executed by police, 5) executed after a proper announcement
(unless exigency), and 6) executed within a reasonable time
Neutral and Detached Magistrates:
The issuing magistrate cannot be one involved with law
Situations to look out for:
An Attorney General, or one who is involved in the search, is not neutral and detached.
Warrants and Probable Cause:
A warrant must be based on a police officer's sworn affidavit, presenting
adequate facts, to support a finding of probable cause.
Situations to look out for:
The affidavit must state adequate facts that lead the magistrate to conclude that probable cause
exists. An officer's conclusions do not constitute "adequate facts."
Warrants and Specificity:
A warrant must be reasonably specific.
Note: The key is reasonableness. If one street number is listed for several apartments, the warrant is
not reasonably specific. However, a description of the "type" of documents to be searched for is
Execution of Warrants and Proper Announcements:
Police must knock and announce who they are
and why they are there when executing a warrant unless there are circumstances dictating otherwise.
Executing Warrants, and a Reasonable Time:
Warrants must be executed within a reasonable time
after they are issued.
Rationale: Since a search must be based on probable cause, it must be executed in a timely fashion,
or probable cause no longer exists.
Challenging Evidence Obtained Under Warrant:
If a warrant includes a material false statement that
was deliberately or recklessly included, the evidence obtained under the warrant is inadmissible.Rationale: Like the Exclusionary Rule, the rationale behind not allowing evidence obtained under a
defective warrant is to prevent overzealous officers from acting improperly.
Good Faith Reliance on Invalid Warrant:
Evidence discovered by police in good faith reliance on a
warrant that is subsequently shown to not have been based on probable cause is admissible.
Rationale: Again public policy favors preventing intentional or reckless misconduct by police. If they
are acting in good faith, this policy is not advanced by suppressing probative evidence.
If a government agent intrudes on an individual's "reasonable expectation of privacy," a search
has taken place.
Situations to look out for:
• A violation of the 4th Amendment prohibition against unreasonable searches requires
governmental action. However, it should be noted that one acting on behalf of police is a
government agent, while private citizens acting on their own are not.
• Public school officials are government agents, while security guards are not, unless they have
Standing and a Reasonable Expectation of Privacy:
To raise a 4th Amendment claim regarding a
search, one must either own the area searched or have a right to possess it.
Situations to look out for:
If evidence is found in another's home that damages a third party, the third party has no standing to
Reasonable Expectation of Privacy:
Courts will look at the totality of the circumstances in determining
whether or not there was a reasonable expectation of privacy.
Warrants and Searches:
Police must have a valid search warrant in order to violate one's reasonable
expectation of privacy.
Warrants and Searches are subject to what exceptions?
1. plain view
3. automobile exception
4. incident to lawful arrest
5. investigatory detentions
6. hot pursuit
7. danger of losing evidence
9. border searches
10. Immigration and Naturalization Service inspections
11. unreliable listener
12. uninvited listener
13. open registers
Plain View and Search Warrants:
A search warrant is not required for evidence in plain view. Rationale: Remember, the 4th Amendment protects one's reasonable expectation of privacy.
Consequently, if evidence is in plain view, one does not have a reasonable expectation of privacy in it,
and a warrant is not needed. Note: The key to determining what is in plain view is whether or not any member of the public may have
access to the evidence.
Search Warrants: Situations to look out for:
If police are lawfully searching under authority of a search warrant, any evidence that they find is
admissible, even if it is evidence that was not the subject of the warrant. However their search must
not have exceeded the scope of the warrant. (i.e., looking in the bathroom when searching for a car).
Search Warrants and Consent:
Police may institute a warrantless search if voluntary and intelligent
permission is granted by one with authority to do so.
1. warrantless search
2. voluntary and intelligent
4. by one with authority
Search Warrants and Consent: Situations to look out for:
• While a roommate may give consent to search common areas like kitchens, etc., one cannot give
consent to search another's bedroom.
• If two people share a bedroom, they still may not be able to consent to a search of the other's
dresser, closet, trunk, etc.
• Don't forget that consent can be given, and consent can be withdrawn.
Automobiles and Warrantless Searches:
If police have probable cause to believe the car contains
evidence, and the evidence may be unavailable when a warrant is finally obtained due to the mobility of
the car, a warrantless search may be conducted.
Rationale: Cars are by their nature, mobile. Consequently evidence may disappear. It is also
significant that there is a lesser expectation of privacy in a vehicle.
Automobiles and Warrantless Searches: Situations to look out for:
• Motor homes generally are treated as cars because of their mobility, however if they are "fixed" to
a place (i.e., on blocks) an argument can be made that the auto-exception should not apply.
• Be prepared to argue that there is a greater expectation of privacy in a motor home than an
Warrantless Searches Incident to Lawful Arrest:
Whenever police make an arrest, they may search the
arrestee and areas within his reach without probable cause.
Rationale: First of all, there are considerations regarding the safety of the officer. Secondly, there are
considerations for the safety of the arrestee who might try to ingest contraband on his person. Third,
there is no reasonable expectation of privacy once one has been arrested.
Warrantless Searches and Investigatory Detentions:
If police detain an individual for investigatory
purposes, they may frisk the detainee only if there is reasonable belief that the detainee is armed.
Note: Police may search areas within reach that could be concealing a weapon.
Warrantless Searches and Investigatory Detentions: Situations to look out for:
The rationale behind this rule is protection of the officer. Consequently an officer may only reach into
the detainee's clothes if she feels something that could be a weapon. For example, a plastic bag filled
with marijuana would not feel like a weapon so if an officer felt it and then reached into a pocket and
pulled it out, it would be inadmissible.
Warrantless Searches and Hot Pursuit:
Police may search any place reasonable when in hot pursuit of
a felon, without a search warrant.
Rationale: Time is of the essence when a felon is fleeing.
Note: This exception applies even to a search of a private dwelling, if it is reasonable to suspect that a
felon is hiding there.
Warrantless Searches and the Danger of Losing Evidence:
If there is a reasonable fear that evidence
may be lost, police may seize it immediately without acquiring a warrant.
Examples: When making an arrest for driving under the influence, a breath, blood, or urine test may
be administered immediately, because by the time a warrant is obtained, the evidence will be gone.
Warrantless Searches and Emergencies:
If there is an emergency, any area may be searched without a
Examples: Bombs in schools; contaminated food or drugs that may be distributed; children in trouble;
Key Words or Phrases:
2. any area
3. may be searched
4. without warrant
Warrantless Searches and Borders:
Warrants are not required for searches at national borders.
Situations to look out for:
• The above rule applies not only to the precise boundary line itself, but also to it's equivalent (i.e., a
checkpoint, airport, bus station, etc., when passengers enter or leave the country.)
• Opening of mail or packages at boundary to search for contraband is permissible. However, there
must be a reasonable suspicion, and mail may not be read.
• Border patrols may stop a vehicle to question those within if they have reasonable suspicion that
there are illegal aliens within. The fact that passengers appear to be of Mexican ancestry does not
give rise to a "reasonable suspicion." Searches however are still subject to the 4th Amendment.
Warrantless searches and the Immigration and Naturalization Service:
The Immigration and
Naturalization Service may check all the employees of a business to determine citizenships without a
warrant. Note: Even though a warrant is not needed, the I.N.S. may not abuse its discretion.
Warrantless Searches and Unreliable Listeners:
Individuals are under no obligation to refrain from
repeating what another has told them, absent a privilege.
Examples: W hen one talks to someone, they assume the risk that they are "bugged" or that they will
repeat what one has said. Even though an individual may feel that the conversation was confidential,
there is no reasonable expectation of privacy, in the eyes of the law, unless a specific privilege exists
(attorney/client, physician/patient, spouse/spouse, etc.)
Warrantless Searches and Uninvited Listeners:
Speakers who do not make a good faith effort to
protect their conversations cannot object to their admission into evidence by one who overhears.
Example: Conversations made from an outdoor pole phone would be admissible because passersby
can easily overhear them (i.e., no reasonable expectation of privacy). However, a conversation made
from an enclosed phone booth, that was overheard by an individual using extraordinary means, would
not be admissible.
Warrantless Searches and Pen Registers:
Pen register records are admissible into evidence without
any warrant requirements.
Note: Pen registers record numbers dialed from a specific phone, not the specific conversations.
Administrative Agencies and Warrants:
Generally, administrative agencies are subject to the same
requirements as police, regarding warrants.
Rationale: Individuals are entitled to a reasonable expectation of privacy in certain areas. The
government should respect this expectation. However, administrative agencies do not project the
same aura of force and intrusion that police do. Consequently, there are circumstances where the
warrant requirement has been relaxed.
Administrative Agencies and Exceptions to the Warrant Requirement:
Administrative agencies do not
require a warrant for searches regarding the following:
2. airline passengers
3. probationers' homes
4. government employees' desks and files
5. contaminated food
6. highly regulated industries
7. general and neutral enforcement plans
Rationale: Generally the following serve as a justification for allowing administrative agencies to
search without a warrant:
1. Some notice is given to those affected that they may potentially be subjected to a warrantless
2. It would be impractical to get warrants for all the potential searches.
3. There is an element of urgency.
4. The public's need for protection outweighs the rights of the individual to a reasonable expectation
of privacy in the given circumstances.
5. Agency expectations are not as intimidating as police searches.
Warrantless Searches and Public School Children:
Public school officials are only required to have
"reasonable grounds" to conduct searches on school campus.
Note: This applies not only to the person of a student, but to desks and lockers, as well.
Warrantless Searches and Airline Passengers:
Searches of airline passengers before boarding do not
require a warrant.
Rationale: It would be cost prohibitive to get a warrant for every potential passenger. It would be
impossible from a standpoint of time to get warrants for every potential passenger. The public would
be endangered if passengers were not subject to searches (i.e. hijackers).
Probationers and Warrantless Searches:
Generally no warrant is needed to search a probationer's
Rationale: Generally, one of the terms of probation is that the probationer consent to warrantless
searches of his home. Consequently, this is negotiated and agreed to.
Note: Police cannot act arbitrarily or capriciously.
Parolees and Warrantless Searches:
1. by statute
3. warrantless searches:
Rationale: Parole is part of an individual's sentence, and as such his expectation of privacy is limited.
This rule has been statutorily imposed.
Note: Police cannot abuse their discretion.
Warrantless Searches and Highly Regulated Industries:
Certain highly regulated industries may be
searched by administrative agencies without a warrant.
Examples: Liquor, firearms, auto junkyards, and mining operations have been held to be highly
Rationale: First of all, individuals who enter these industries consent to the searches. Secondly, there
is a high potential for public harm.
Warrantless Searches and General and Neutral Enforcement Plans
Administrative agencies may
hold inspections without a warrant pursuant to a general and neutral enforcement plan.
Situations to look out for:
The administrative agency must be able to demonstrate that there is a reasonable suspicion that
some buildings in the target area are out of compliance. The agency may then institute a general plan
of "spot checking." However, the plan must be such that it does not give rise to selective enforcement.
Searches and Methods that "shock the Conscience":
Evidence that is obtained by means that "shock
the conscience" will not be admissible.
Situations to look out for:
Especially in situations involving drug enforcement, there are times when shocking actions by foreign
officials may be used to gather evidence. It is significant to note that foreign officials are not subject to
Constitutional restraints, however if the methods they have used "shock the conscience," the evidence
will not be admitted.
Criteria to Consider Regarding the "shock the Conscience Test:"
In determining whether or not a
method of obtaining evidence "shocks the conscience," the following criteria will be weighed:
1. How probable is it that the evidence will be found?
2. How significant is the evidence?
3. How shocking is the method?
4. Are there alternative methods of obtaining the evidence?
Seizures and Owners of Property Used in a Crime:
Owners of property used in the commission of a
crime have no rights to due process prior to a seizure.
Forfeitures and Owners of Property Used in a Crime:
Owners of property used in the commission of a
crime are entitled to due process prior to declaration of a forfeiture.
Rationale: Property used in the commission of a crime is usually in possession of the criminal and
thus subject to being held by the police. There is usually an issue of urgency where the property (i.e.,
car, boat, etc.) is mobile and may be lost. On the other hand, once the property is in custody, there is
time for notice and a hearing.
Note: The owner of property used in the commission of a crime must prove that he undertook normal
preventative measures to prevent criminal use of his property, not merely that he was unaware of
Illegally obtained evidence is not admissible at trial.
Fruit of the Poisonous Tree:
Evidence that would not have been obtained but for improper conduct is not
admissible at trial.
Example: If a police officer stops a vehicle without probable cause and sees contraband on the seat,
the contraband may be excluded as evidence under the Exclusionary Rule because it was obtained as
a result of an illegal stop.
Example: (same facts as above) If on the way to the police station, the defendant confesses, the
confession may be excluded as Fruit of the Poisonous Tree, because the confession was a result of
the chain of events set in motion by the illegal stop.
Purpose Behind Exclusionary Rule:
There is a strong public policy behind protecting individual rights,
and the best way to ensure that these rights are protected is to remove any "benefit" that may be obtained
by violating them.
Situations Where Illegally Obtained Evidence May Still Be Admitted:
Illegally obtained evidence may
still be admissible if it was obtained through the free will of the defendant, it was obtained from an
independent source, or it would have inevitably been discovered.
Evidence obtained from a source that is unrelated to the illegal act will be
Evidence that would have been discovered without an illegal act is admissible.
Example: Police have a warrant to search a safe for contraband. When they arrive on the scene, they
unlawfully arrest the defendant, who subsequently tells them that contraband is in the safe. The
contraband would be admissible since it would have been found anyway.
Exceptions to the Exclusionary Rule:
The Exclusionary Rule does not apply in the following situations:
1. grand juries
2. Impeachment purposes
3. violations of internal agency rules
4. civil proceedings
5. good faith reliance
6. harmless error
The Exclusionary Rule and Good Faith Reliance:
Suppressing evidence obtained in good faith would
not achieve the goal of preventing law enforcement personnel from violating constitutional rights.
Rationale: The whole concept behind the Exclusionary Rule is to prevent law enforcement personnel
from violating constitutional rights. If they are acting in good faith, and the evidence is suppressed, the
judiciary is losing probative information and gaining nothing.
Arrests and Warrants:
Warrants are not required for arrests in public places. Warrants are required for
arrests in one's home unless there are exigent circumstances.
Note: While evidence obtained as a result of an unlawful arrest is not admissible, the only remedy for
an unlawful arrest is a civil suit.
Note: Anyone may be arrested anywhere if the arrest is conducted pursuant to a valid warrant.
Warrantless Arrests and Common Law:
Police officers may arrest without a warrant if there are
reasonable grounds to believe that there has been a felony committed by the arrestee, or if the arrestee
has committed a misdemeanor in the conscious presence of the officer.
Things to look out for:
"Reasonable grounds" is an area for argument.
"Conscious presence" can mean any of one's senses.
If an "arrest" was made by a non-officer, was the arrestor acting in concert with the police?
Detentions for Purposes of Investigation:
Police may detain a person for purposes of investigation if
they have a reasonable suspicion supported by articulable facts that the detainee has information
regarding criminal activity, without a warrant.
Note: An investigatory detention may produce probable cause for an arrest.
Investigatory Detentions vs. Arrest:
While one is not free to leave when being detained, if the detention
is brief and specific, it is likely to be considered a detention rather than an arrest, and a warrant is not
Note: Length of time and movement to another area may change a "detention" to an "arrest."
Unless they have a reasonable belief that a law was violated by the driver of an
automobile, the police may not stop an automobile.
Situations to look out for:
• Police may not stop a vehicle just to check license and registration.
• At a designated roadblock, police may check cars without a reasonable suspicion as long as there
is an articulable scheme followed (i.e., every 10th car is stopped, regardless of its appearance).
• Random boarding of boats "in a channel leading to the open sea," has been upheld regardless of
the reason or lack of a reason.
Rationale: Boats are treated differently for two reasons. First of all, it is relatively easy to leave the
territorial waters of the United States. Secondly, it is easy to sink a boat in deep water where evidence
would be inaccessible.
Note: A "good argument" that has proven unsuccessful is that an individual would seem to have a
greater expectation of privacy in a boat than a car.
What Constitutes a Probable Cause Determination:
Probable cause may be established by:
1. issuance of an arrest warrant
2. prior indictment
3. informal hearing
Post Probable Cause Appearance:
Soon after probable cause is established the defendant is brought
before a magistrate who will explain his rights, appoint counsel if necessary, and consider bail.
Note: Speed and timing are significant. There is a strong public policy against holding a person for any
length of time without a showing of probable cause, or when bail is appropriate. Consequently a
probable cause hearing may frequently be incorporated into the appearance before the magistrate.
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Overruled Wolf. Extended ER to the State and Federal government.
Exclusionary Rule To Quasi-Criminal (Non-Criminal) Proceedings
• Like the 6th amendment right to counsel, courts are reluctant to extend ER beyond criminal trials.
ER Does Not Apply To:
1.) Grand Jury Proceedings
2.) Probation or parole hearings - ER does not apply to parole and probation revocation proceedings.
3.) Tax assessment proceedings
4.) Immigration deportation proceedings
ER Applies To:
1.) Forfeiture Proceedings
2.) Criminal Proceedings
Exclusionary Rule Applies To Government Conduct Only
The Exclusionary Rule applies to Gov't officials and its agents, not private citizens (unless situation where citizen is working with police, then ER could apply).
"Good Faith" Exception To Exclusionary Rule
If the government carries out a search warrant in "good faith," then the ER DOES NOT apply to the search (search is valid) if police act in accordance with a search warrant, its presumed lawful, but can be challenged by defense. Burden is on the prosecution to prove search was in good faith. (Leon)
Reasonable Expectation of Privacy (5 Principles) (REOP)
1.) No Trespass is required for 4th amendment violation (i.e. THERMAL IMAGING)
2.) The 4th Amendment protects people and NOT PLACES (i.e. Abandoned house in middle dessert is not protected. But a home with people inside IS protected)
3.) 4th protects areas and things for which a person has a REOP. (Bag/car)
4.) 4th amendment protects tangible and intangible objects (Ex. Sound waves)
5.) If Police have probable cause to search, and have sufficient time, they should first obtain warrant first.
REOP Pertaining To Discarded Garbage
Expectation of privacy must be reasonable. Society does not have a reasonable expectation of privacy pertaining to discarded garbage and 4th amendment does not apply. (Greenwood)
REOP & Freedom of Movement
The constitution not only protects people and their REOP, it also protects their freedom of movement. Brief detention (not long detention) of property is permissible. (Place)
4th amendment protects people's freedom of movement, their possession of property and liberty of person.
Protected Areas Include Business Premises
A businessman, like the occupant of a residence has right to go about his business free from unreasonable official entries upon his private commercial property.
What The 4th Amendment Protects:
1. People & there REOP
2. People's property (House, business)
3. People's freedom of movement (Ie. Movement of mobile home) Slodal
Open Fields Beyond Area of Curtiliage
4th amendment protects house or curtilage but OPEN FIELDS are not protected! (Oliver)
4 Factors To Determine Curtilage (What Is Covered):
. Proximity of the area claimed to be curtilage to the home
2. Whether the area is included w/in an enclosure surrounding the home.
3. The nature of the uses to which the area is put
4. Steps taken by the resident to protect the area from observation by people passing by (least important).
Curtilage does not have absolute protection (Ex. What if your fence line is only 5ft high and neighbor sees you are growing pot, and calls cop. Cop sees pot→no 4th protection b/c has been exposed to the public.
Exterior of Vehicles
Exterior of vehicles has no 4th amendment right to REOP.
Extended GPS Tracking
Installation of a GPS device on a vehicle and its use to monitor a vehicles movements constitutes a search.
Exterior of Baggage
The interior of luggage is protected by the 4th amendment. The exterior of luggage is not.
Dog sniffs of luggage is not a search and therefore not protected under 4th amendment. (Place)
Police can place beeper on exterior of luggage to track it but CANNOT track the luggage once it gets into a persons home. Police must then obtain search warrant once within a persons home. (Knotts)
Even though exterior of luggage is not protected, such protection does not include manipulating the exterior to feel what's inside. Thus, the inside of the bag has absolute protection. Squeezing bags constitutes a SEARCH=needs search warrant (Bond)
An installation and use of a pen register does not constitute as a search and does not require a search warrant because there is no actual expectation of privacy in the phone numbers dialed.
Policy: Phone numbers are a matter of public record and therefore cannot be an actual means of privacy.
Pen Register - A pen register is a mechanical device that records the numbers dialed on a telephone.
Sensory Enhancing Equipment That Does Not Penetrate The Land
Police can use sensory enhancing equipment, no matter how expensive ,as long as equipment can 1.) be available to the general public and 2.) it doesn't penetrate the inside of a house, dwelling, or business (ie. Binoculars, cameras, flashlights) (Dow-Chemical)
Warrantless Thermal Imaging Is A Violation of 4th Amendment Rights
A search warrent is necessary for thermal imaging b/c = a search that penetrates the inside of a house. (Kyllo)
Facts and circumstnaces known to the officer by his observation of the suspect that would lead a rational person to believe that the suspect has in fact committed a crime. Significantly lower standard than "beyond a reasonable doubt"
People who give information about past criminal happenings that they claim to have information about
Informants are generally Not
a.) Crime Victims
b.) Witnesses to a crime that just occurred
To Support Warrantless Arrest Based on Info From Informant
In order for police to make an arrest without a warrant, a reliable informant must provide an exact description of the suspect and the circumstances surrounding the crime. (Draper)
To Support Search Warrant Based On Info From Informant (Aguilar Rule)
Two "Prong" Test for testing P/C based on info from an informant (RV+B).
1. Reliability of informant and Veracity-What is known about the informant himself (credible, trustworthy, and reliable)—track record?
2. Basis of Knowledge-how much info did the informant give that creates logical happening.
To Support Search Warrant Based On Info From Informant (Spinelli Rule)
: 2 Prongs in Aguilar + Corroboration Factor
Rule: If you have the two prongs in Aguilar and both are weak, you can bolster by CORROBERATION of the police to make them sufficient.
To Support Search Warrant Based On Info From Informant (Gates Rule)
Requires analysis based on the "totality of the circumstances" including 3 relevant factors. Not one is determinative. (VBC)
1.) Veracity/Reliability Factor: Is informant reliable?
2.) Basis of Knowledge: What underlying facts does the informant provide from which the judge can conclude the informant has some firsthand knowledge of the targets activity and that this activity is related to crime?
3.) Corroboration: What does the police do to corroborate (validate) the information.? (ie. surveillance, records, checks, etc.)
Challenging Falsehoods in search warrant affidavit
If the cop deliberately lies or recklessly misstates, or leaves something out of the affidavit, rule is to take out the information from the affidavit and if there is still sufficient probable cause in the affidavit, after taking out the information, then you can still get the warrant (or put in the information left out). (Franks)
i. To challenge the accuracy of an affidavit you must show a reckless disregard for the truth
Forcing disclosure of informants identity
Courts avoid forcing disclosure of informant's identity but courts can do a private in-camera inquiry. (McCray)
Other sources of Probable Cause (Crime Victim/Witness)
No prior reliability need be shown because he acts with intent to aid the police in law enforcement because of his concern for society or for his own safety. He does not expect any gain or concession in exchange for his information. Has inherent trustworthiness.
Other Sources of Probable Cause [List]
a.) Crime Victim/Witness
b.) Observations By Police
c.) Official Channels (APS's/BOL's)
Anticipatory Search Warrants
At the time the warrant was issued there was no probable cause that the contraband existed at the time. (Contraband has to be there "currently"). (Grubbs)
Probable cause can be obtained by:
2.) Crime Victim/Witness
3.) Direct Observations By Police
4.)Official Channels, incl. APBS (All Points Bulletin) - Officer has right to investigate stop based on reasonable suspicion.
Situations Where Good Faith Exception May Apply
1.) Mistakes made by court clerks does not override "good faith" by an officer and good faith may apply. (Evans)
2.) If an officer acts on reliance on a law that has been subsequently declared bad law, good faith may apply. (Krull)
3.) Good faith may apply if there was objectively reasonable belief that the warrant was valid (Shepard)
4.) When police mistakes leading to an unlawful search are the result of negligent reliance on their own records rather than systematic error or reckless disregard of ones constitutional rights, the good faith exception may apply. (Herring)
Policy: Police should clearly monitor information transmitted through their airways. However, this law indicates that law enforcement is not under a duty to make sure their database is up to date.
Situations Where Good Faith Exception Does Not Apply
1.) If any reasonable officer can discover the error of a search warrant at
face, then good faith does not apply. (Groh)
2.) If police mislead a judge while applying for a search warrant.
3.) Where the judge abandoned his neutral view that they became biased in favor of the police to grant the search warrant (judge wasn't looking a the situation from a neutral perspective)
Search Warrant Composition
Composed of Three Parts:
o 1.) Warrant Itself - first page and single piece of paper, directed to a residence, has a list of what can be seized, signed by the judge.
o 2.) Affidavit - Which shows probable cause (must pass muster under Gates). Police officer goes to Judge with Aff., signed after being sworn, probable cause support for issuance of warrant- filed with court clerks office- MOST IMPORTANT PART OF WARRANT (very touchy are on what is sufficient P/C).
o 3.) Reciept and Inventory - the officer must catalog and list everything they took from the house. When search is completed, entitled to a copy of the receipt and inventory.
Preference For Warrants
The Supreme Court has long expressed a strong preference for searches made pursuant to a search warrant. And, on occasion has even asserted that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures. (Ventresca)
Neutral Detached Magistrate
Person issuing warrant does not necessarily have to be a judge or lawyer. Instead, issuing person must meet two tests: 1.) that they are neutral and detached and 2.) Capable of determining whether probable causes exists for the requested arrest or search.
Description of Place To Be Searched
Search warrant description is enough if the description is such that the officer with a search warrant, can with reasonable effort ascertain and identify the place intended.
Description of Things To Be Seized
Things to be seized must be described accurately in a search warrant. However, usually a provision for dominion and control evidence (proof who lives at the residence) is provided in the search warrant which allows search to expand in scope. This is important to establish who lives there and it greatly expands the area of the house police can search.
Time of Execution
General rule is that daytime searches are preferred over nighttime between 7am and 10pm. For searches involving a controlled substance, there is no time requirement, just that the substance be on the property at the time of search.
Compliance With "Knock-Notice"
a. Knock notice is part of the 4th amendment even though its not explicitly stated. Officers must:
2) State who they are
3) There purpose ("here to serve a search warrant")
4) Demand entry
b. Knock Notice Purpose - To avoid confrontations between the police and the homeowners
Exceptions To Knock Notice
1) When the police have a good faith belief that evidence inside will be destroyed.
2) Belief that officers lives will be in jeopardy
Pre Authorized Non-Compliance With Knock Notice
- If the police are aware that they will have non-compliance with knock notice ahead of time, then it must be in the warrant and signed by the judge (preauthorized).(Banks)
Search of Persons On Premises Not Named In Search Warrant
Persons not named in warrant cannot be searched on premises. (Yabarra)
Detention of Persons on Premises
Persons maybe detained in any manner on premises. However, Police cannot detain someone that is miles away from the house. Person must be within close proximity to the premises.
Detained Persons May Be Handcuffed During Search
During a search, potentially innocent people can be handcuffed for officer's safety. (Mena)
Presence of Third Parties
Police can bring victim to scene of crime to identify property or people but cannot bring in media because it is not in aid of the execution of the warrant. (Wilson)
Securing Premises While Warrant Is Obtained
Officers may secure the premises from within, while others in good faith are in the process of obtaining a search warrant, and with probable cause may arrest the occupants who have a legitimate possessory interest in the contents. (Segura)
Protective Sweep of Adjacent Areas/Structures For Officer Safety
Police can search adjacent rooms/property for other human beings, going beyond the scope of a warrant, for as long as it takes to dispel suspicion of danger for officer safety. (Bouie)
Warrantless Searchs Are Reasonable Under These 6 Exceptions:
A = Automobiles
S = Search and Frisk
P = Plain View
I = Incident To Lawful Arrest
C = Consent
E = Exigent Circumstances
1) Warrantless Arrest Based On Probable Cause
Police Officers are permitted to make warrantless arrest in a public place if police have probable cause (p/c) to believe crime has been committed by defendant. (Cannot make arrest in home based on p/c. Only in public place; crime committed can be a very minor offense) (Watson)
Arrest of All Occupants Where Drugs Are Found In Vehicle
When drugs are secreted in some part of the car that is accessible to all of the occupants, the cops have probable cause to arrest everybody within the vehicle. (Only applies to cars/NOT homes). (Pringle)
i. If police have information to implicate only one person in car, he has no p/c to arrest the other occupants.
Arresting Person For Minor Offense
If police have probable cause to arrest anybody for an offense (even if a minor offense), the arrest is left to the discretion of the police. (Atwater)
Use of Deadly Force To Effectuate Arrest
Under certain circumstances, police may use deadly force , if there is a threat. (ie can shoot a fleeing felon).
Use of Deadly Force To Effectuate Arrest Where Defendant Brings On Reaction Of Police Through His Own Conduct
Where the defendant brings on the reaction of the police through his own conduct, police may use deadly force
6) Taking Arrested Person Promptly Before Magistrate
After arrest supported by probable cause, the person must go promptly in front of a judge, with no unreasonable delay, to make sure there was p/c for the arrest. (Gerstein)
Reasonable Amount of Time Before Taking Arrested Person Before Magistrate
A person can be detained for 48 hours after arrest, not counting the day of arrest, before seeing a judge. The exception being, if over 48 hours, government must show justification. (McLaughlin)
i. Decides how long is reasonable. As a practical matter, 2 days can mean 5 days if they are arrested on Friday and are scheduled to be seen in court on Tuesday.
Permissible Scope of Search "Incident To Arrest"
Once a person is lawfully in custody pursuant to a lawful arrest, the police may do a FULL exploratory search over that person for ANYTHING they can find. (Robinson)
Limited Area of Permissible Scope of Search "Incident To Arrest"
The limit of an arrest search is the search of a person's body, clothing , and the area within his immediate control (think "arms reach" & area where person is arrested. Cops can't arrest and then bring person over to a place and search them in the new area). (Chimel)
Monitoring Movements of Arrested Person
When a person is arrested, officer has a right to monitor movements of the arrested person.
Jailhouse/Hospital Searches of Person Lawfully In Custody
When someone is lawfully arrested and a full exploratory search is done on the initial arrest, a second search at the jail ("booking search") is permissible to keep contraband and weapons out of the jail AND to protect against false accusations of theft against the jailer. (Lafayette)
Bodily Fluid Extraction After In Custody
Once a person is lawfully in custody, police can take bodily fluids from them and it is not a violation of 4th amendment rights.
Jail Strip Searches
Anybody in jail (however major or minor the offense) may be subject to a strip search.
Jail DNA Testing
Jail has a right to take DNA testing from felony suspects.
Specific, articulable facts known to the officer and logical inferences from those facts based on the officers training and experience, that support the conclusion that criminal activity is taking place or is about to occur.
Terry v. Ohio
3 Rules of Terry:
i. 1.) Police may temporarily detain suspect on "reasonable suspicion" if suspect engaged in or about to engage in criminal activity(facts short of probable cause to arrest, but officer must articulate reasons); and
ii. 2.) Frisk the suspect's outer clothing for hard objects if the officer can articulate reasons for believing that the suspect is armed;
iii. 3.) BUT if the detention is deemed unlawful, the evidence obtained is suppressed and is considered a violation of the 4th amendment because the persons freedom of movement is restricted. (Terry v. Ohio)
"Reasonable Suspicion:" The Totality of Circumstances Test
The whole picture must be taken into account - the police officer must have a particularized and objective basis for suspecting the particular person stopped for criminal activity, taking into account the officers experience
3) Can detainee withhold identity from police?
The 4th amendment does not require a suspect to provide identification but a state law that imposes such a requirement does not violate the 4th amendment. (Hibel)
Subjective Intent of The Officer Immaterial
The subjective intent of the officer as to why he is stopping someone is immaterial as long as there is an objectively reasonable violation (ie broken tail light, license plate partially obscured, speeding) that represents the basis for the detention. (Whren)
Consensual Encounters Not Amounting To Seizures
(1) If reasonable person would feel he is not free to leave, this will be deemed a "seizure" within the meaning of the 4th Amendment. (2) If police treat person as if he is under arrest (ie "lets go to the security office") then this is tantamount to an arrest and must be supported by p/c, (3) if otherwise voluntary and consent is obtained during unlawful detention/arrest then consent is invalid. (Royer)
Do Police have to inform people of their right to leave?
Police do not have to inform people of their right to leave despite the fact that people may feel compelled not to do so. (Boytick)
To Be "Seized" Person Must Submit To Authority
In order for there to be a seizure, the person must submit to authority.
i. A mere police chase does not amount to a seizure.
Is car passenger on traffic stop "seized?"
When a motorist is stopped for a traffic violation by a police officer, everybody in the car is seized and is not free to leave. (Brendlin)
When one is frisked for weapons during detention, the frisk is limited to hard objects.
Duration of Detention (What are the limits?)
Length of detention should only be the necessary amount of time it takes for the police to confirm or dispel their suspicions.
Detentions Based On Anonymous Tips
Courts give greater emphasis on anonymous tips that are made to future conduct of other people is enough to detain person on reasonable suspicion. (White)
Anonymous Tips Not Based On Predictive/Future Behavior
If anonymous tip is not based on predictive information or corroborative observation of future behavior, the tip is not sufficient to detain.
Drug Courier Profiles APB's
An APB match of a person with the profile of a drug courier is sufficient to justify temporary detention
Traffic Stop re: Drug Trafficking "Profile" Approved
Almost any conduct can fit the profile including waving or not waiving to an officer (Arvizu)
"Flight" As A Basis For Detention
Just because a person is located in a high-crime area is not enough to support reasonable suspicion. But unprovoked flight is- running from the police justifies temporary detention. (Wardlow)
On Scene Fingerprinting
Police can momentarily detain for fingerprints. Court is more tolerant of a momentary intrusion.
Taking Suspect "Downtown" For Questioning
Police Cannot take somene downtown to the police station unless the police have probable cause for the arrest
If the cop is lawfully in a place he has a right to be and sees something without doing a search, is in plain view and is 1.) narcotics, weapons 2.) or evidence of a crime, the evidence in plain view is admissible.
Two Main Issues:
1.) Do the officers have a right to be where they are when they made the observation?
2.) The object that is ultimately seized in plain view must be inherently contraband or criminal evidence
Exception: Pre-Existing P/C During Execution
Plain view Discovery does not have to always be inadvertent. The officer has to be lawfully where he is when he makes the observation, only exception is the skies and open land.
Moving "Plain View" Objects To Determine P/C Is A Search
search is illegal if cops move the plain view object to discover other evidence. Must get a s/w to move it.
Very narrowly applied and usually involves and emergency/hot pursuit in which cops are chasing somebody who committed a crime and the person seeks refuge into a house.
Exigent - Emergency
1.) Arrest Outside Home As Creating Exigency To Search Home
An arrest of a person outside of a house does not create enough of an exigent circumstance to justify a warrantless search of a house. (Vale)
Warrantless Crime Scene Searches
i. The seriousness of the offense under investigation does not itself create exigent circumstances of the kind to justify a warrantless search
ii. Crime scene itself does not create its own exigency
iii. Some latitude for brief search but extensive search requires a warrant.
Warrantless Home Entry To Arrest Suspect On P/C
Absent exigent circumstances, police cannot arrest suspect in home w/out warrant unless p/c arises in home after police are lawfully in the home (ie to execute search warrant).
i. Different from Watson (public place) and Payton (in home).
Arrest Warrant For Third Party
i. Police cannot go into someone else's house with a warrant to arrest someone else who is not the person identified on the actual warrant. (Steagold)
Example: Police had arrest warrant for Lyons - thought he would be at another guys house, so busted into the other guys house. Police did not find Lyons but found Steagold and drugs and thus arrested him. Ct held that the arrest was unlawful because no extigent circumstances
Emergency In House
Exigency of somebody being in danger in the house justifies a warrantless entry
Limiting Forcible Blood Draws On DUI's Based On Extigent Circumstances
If a cop is going to forcibly draw blood from a suspect for DUI purposes, cops will have to show that they could not obtain a search warrant within a reasonable amount of time.
Warrentless Searches: Consent
There are four issues that can come up with a consent search. Use the acronym, VAST.
V = Voluntary (Was the consent voluntary?) (Schneckloth)
A = Apparent Authority (Rodriguez)
S = Scope (What was the scope of consent?) (Jimeno)
T = Tainted (Was the consent obtained in an unlawful detainment? (Royer
No Warning Required Regarding Right To Refuse Consent
1.) No Miranda type warning ("you have the to refuse consent to search") is necessary to inform citizen of his ability to refuse his consent to a search. 2.) Prosecution must prove that the consent was voluntary. (Schneckloth)
3.) Scope of Consent (What The Police Can/Cannot Search)
The scope of consent is governed by what is sought. [not by the suspects intent or the officer's perception but instead by what the typical reasonable person would have understood the verbal exchange to mean between the officer and the suspect.] (Jimeno)
Third Party Consent (Apparent Authority)
In obtaining consent, an officer can rely on apparent authority of a third party if the cops reliance is objectively reasonable.
i. Objectively Reasonable - Does the person in possession of the object (ie car) have the apparent authority for the police to search it? (Rodriguez)
Hotel Employee Consent
Hotel employees may not consent to the search of a particular room during the period in which it has be rented by a guest.
Common Authority and Special Relationships
If husband and wife both present & one says yes to search and the other says no to search, cops cannot search. However, if husband initially says no to search but then leaves and wife consents while husband is away, cops can search premises. (Georgia v. Randolph)
Consent Acquired During Unlawful Arrest or Detention
If a person is unlawfully arrested or detained, any consent acquired is invalidated.
The "Automobile Exception"
If the police have existing probable cause to believe that a particular vehicle contains contraband (something that is inherently illegal like drugs, sawed off shotgun, crime evidence) the police can search the car without first obtaining a search warrant. (Carney)
Tracked Container Rule
Where the cops have probable cause to believe that a closed container contains contraband and winds up in a automobile, the automobile exception trumps the protection of the container (cops can search the container without a warrant on the spot.).
i. Limitation -The search is limited only to the container and the rest of the vehicle cannot be searched (Ross).
ii. Search autorhity now includes "tracked" containers winding up in auto, but search is limited to securing the containers itself, and only of area where container is located (ie. container in trunk, cop can only open trunk and then open container) (Acevedo)
Automobile Exception Not Based On Exigency
Police having time to get a s/w is not a valid defense. Just b/c police had time to get a s/w is not a valid claim. Automobile is highly mobile; thus could lose evidence- reduced expectation of privacy in auto
4.) Search of Containers In Vehicle Belonging To 3rd Parties
Cops can search a container possessed by a 3rd party. (Houghton)
Police have right to inventory the contents of an impounded car.
Police can search closed containers to take a proper inventory. Its permissible to do a second search of the car to protect the cops and towing company from false claims of theft and to inventory the contents of the car.
Administrative Rules For Impound/Inventory Searches
if police are going to open closed containers like backpacks during inventory searches at the impound yard, they have to do so w/in the guidelines of administrative rules.
i. Four Requirements:
1. Lawful Arrest of Driver
2. Necessity For Impounding Car (If No Statute)
a. Analyze whether car is in position where it presents a hazard
b. Is there a statute that allows officer to impound the vehicle?
3. There must be inventory of contents of vehicle consistent with written guidelines
4. Discovery of evidence has to be inadvertent
a. Inadvertent - Cop must be logging an inventory without the objective of intentionally trying to discover evidence.
b. Does not apply when evidence is discovered in plain view
Incident To Arrest Search Extended To Autos
when a person is a recent occupant of a motor vehicle and lawfully arrested, police can do a search "incident to arrest" in automobile by only searching the passenger areas of the vehicle (not trunk) (Belton)
What is the scope of an incident to arrest search of an automobile?
Cops can search a vehicle if arrest is made in close proximity to the vehicle such that arrestee could access vehicle for weapon/evidence or if they have reason to believe that evidence of the crime resulting in the arrest exits in the automobile. Search is limited to the passenger area of the vehicle (does not include the trunk.(Gant).
i. Example: Cops find marijuana in the house. D pulls up in truck. Cops find drugs on person. Is identified as owner of house. Cops have p/c to arrest (marijuana in house, D is owner of house).
ii. "Reason To Believe" Analysis on Exam: If a court were to hold that, discovery of drugs in house and drugs on person gave cops "reason to believe" that evidences of the crime of arrest exists in the vehicle, then search of car is a valid search.
Detention Search For Weapons Extended To Autos
Long extends Terry v. Ohio and frisk rule by permitting weapons search of auto's interior and any containers that could conceal weapons if officer can articulate reasons why he believes auto contains weapons during the lawful detention of auto occupant. (Long)
i. Containers can be searched only if weapons can be logically stored in such container.
Ordering Out Driver/Passanger
a. Mimms - Anytime police make a lawful detention of motorist they can order driver out of car.
b. Wilson - Extended Mimms to allow police to order passenger out of the
Can Police Use Drug Detecting Dog On Routine Traffic Stop?
On a lawfully detained stop based on reasonable suspicion, the police may use drug-sniffing dogs. (Caballes)
Does drug-detecting dog provide probable cause to search vehicle?
A properly trained drug detecting dog that alerts police of the possibility that drugs are present in a vehicle can create probable cause to search the vehicle
Does drug-detecting dog provide probable cause to search house?
Pertaining to houses, drug detecting dogs do not create probable cause to search house
Safety inspectors can randomly inspect as long as it is part of their regulatory scheme. (Health inspector, building inspector)
The mere crossing of the boarder (by a person or vehicle) is sufficient basis alone for conducting a random search of the person or vehicle. (Ramsey)
The further away from the border, the more individualized suspicion needed. Generally, the most checkpoints can do is slow down the cars and ask a few questions and let them go. To search the cars at checkpoint, you have to have reasonable suspicion to take them over to secondary inspection area.(Almedia-Sanchez)
Drivers Liscense/Registration Check
There is a special need for traffic control or traffic safety, no individual suspicion is required to check for driver liscenses and registration.
Roadblock check for drugs disapproved
Not allowed the use of dogs to sniff for drugs when roadblock was used primarily for law enforcement oriented activity. (Edmond)
Roadblock check to locate witness approved
Roadblock stop to try to find witness, stopping everybody to ask question about a witness is allowed. (Lidster)
Student Searches, Probationers/Parolees
School authorities do not need a search warrant to search student belongings. If school authorities have reasonable suspicion to believe that contraband exists in student belongings, they may search without a search warrant.
i. Policy - There is an expectation that students can go to school free from weapons and drugs.
School Strip Searches
School authorities cannot strip search students without a search warrant.
Probationer/Parolee: Have a 4th amendment waiver and can be searched by police as long as they know about the 4th amendment waiver (police can search vehicle, house, etc at any time for any reason.)
Mandatory Drug Testing of Students
Any student that wishes to participate in student activities can be drug tested. Drug testing of a student is a slight intrusion of privacy (completely confidential - samples were not turned over to law enforcement/police).
Hospital Turning Over Urine Samples To Police Disapproved
Hospitals may not draw blood sample without consent and analyze it for drugs without a search warrant and turn the results over to the police.
Current Approach To The Rule on "Standing"
To claim 4th amendment violation and challenge a search, you have to be the primary and initial victim of the police illegality. You have to establish a reasonable expectation of privacy in the object or area searched to assert a 4th amendment violation claim.
i. Example: If cop illegally search Mike's briefcase and takes drugs out but cops think they belong to you, DA prosecutes you, you cannot raise a 4th Amendment issue with respect to that seizure because you were not the primary victim and have no primary interest in the briefcase.
ii. Issue Trigger - When there is an illegal search against defendant A, drugs are found in A's car, the drugs belong to B and are used to incriminate B.
Fruity of The Poisonous Tree
The person who is the primary victim of the initial police illegality can suppress all evidence as a result of that illegality. That is the fruit of the poisonous tree. (Wong Sun)
i. Example - Toys rights violated (first) and told cops he got drugs from Yee. Yee's rights violated (second) and he told cops got drugs from Wong Sun. Wong Sun thinks he cant be prosecuted had police not violated both Toy and Yees rights. But ct said Wong had no standing. BUT, Toy can suppress all evidence b/c he was the original person to have his rights violated, he does have standing
a. Segura - The ultimate seizure of evidence lawfully obtained by independent source is not excluded and illegal conduct by the police is overlooked.
i. Example: if police conduct an illegal search, but do not derive any evid of that search- but independently derive p/c for s/w to go back to house to search- ct considers the s/w independent and is okay.
b. Murray - If the police conduct an illegal search, they may get a search warrant based on other independent evidence and not have the evidence found by the unlawful search included within the warrant..
a. Williams II - Inevitable discovery is always based on a hypothetical. "But for the illegal conduct, the evidence would have been found anyways."
i. Muir Note - The difference between inevitable discovery and independent source is that evidence was acquired through legal means in independent source and not for inevitable discovery which is based on a hypothetical that it would have been found legally anyways.
ii. Example: Police stop and illegally search the D's body- stopped person for speeding have no reason to believe he has weapons. On this illegal search the cops find drugs- however, during this time the cops finds out he has a warrant- cops are going to arrest him, then going to search him anyway (, thus the drug were inevitably going to be found.
Exclusionary Rule Not Applied To Knock Notice Violations
Police didn't comply with knock-notice. Officers entered house suspected to have drugs/weapons, waited 5-10 seconds, entered home and found drugs/weapons. Ct looks at social benefits of not complying with knock-notice. Officers already had a valid warrant to get drugs, whether complied with K-N or not they were going to get the drugs. Even though didn't comply K-N, don't apply ER because they would have found the drugs anyway.
Ways To Expand The Exclusionary Rule
a. Consent (Royer), if consent is obtained during illegal detention or arrest, it is thrown out
b. Confessions (Brown v. Illinois), if confession is derived from illegal arrest/detention, it is thrown out.
i. Miranda note: Miranda warnings and waiver does not CURE unlawful arrest and detention so statements must be suppressed.
c. Further observation of getting more evidence derived from illegal arrest/detention, it is thrown out
d. Illegal home entry leading to evidence in plain view (Payton), evidence is suppressed
e. Illegal Seizure of evidence leading to arrest is suppressed
Ways To Limit Exclusionary Rule
a. Good Faith exception (Leon)
b. Lack of Standing (Rakas)
c. Independent Source (Murray/Segura)
d. Inevitable Discovery (Williams II -Christian burial case)
Imposes the exclusionary rule on the states
"evidence acquired by an illegal search or seizure is inaddmissible as a matter of due process, not only in federal courts but also in state courts.
EXCEPTION TO THE EXCLUSIONARY RULE
Violation of knock-and-annouce requirement does NOT justify the exclusion of evidence found in the home.
- Other exceptions: Plain view doctrine, exigent circumstances doctrine.
WHAT CONSTITUTES A SEARCH
A 4th Amdnemdnet search occurs when the gov't violates a SUBJECTIVE EXPECTATION OF PRIVACY that SOCIETY RECOGNIZES AS REASONABLE
2 prong test:
1) a person must have an actual (subjective expectation of privacy; AND
2) the expectation must be one that socieyt is prepared to recognize as "reasonable"
4TH AMENDMENT SEARCHES - 1
OPEN FIELDS - NOT A SEARCH
- no 4th amend. protection in open field because no legitimate expectation of privacy in an open field
4TH AMENDMENT SEARCHES - 2
CURTILAGE - SEARCH
4 factors to determine whether something falls within the curtilage:
1) proximity to home
2) included within enclosure surrounding home
3) nature of use (intimate family activities)
4) steps taken to protect the area from observation by people passing by.
4TH AMENDMENT SEARCHES -2
MANIPULATIONS OF BAGS IN PUBLIC TRANSIT - SEARCH
A law enforcement officer's physical manipulation of a bus-passenger's bag violates the 4th amendment.
4TH AMEND SEARCHES - 2
USE OF TECHNOLOGY TO ENHANCE INSPECTION -
THERMAL DETECTION DEVICES = SEARCH
Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area" constitutes a search - at least where the technology in question ins not in general public use.
4TH AMEND SEARCHES - 2
CANINE SNIFFS = NOT A SEARCH
A dog sniff is "sui generis" (of its own kind) and only reveals illegal activities, so it does not constitute a search under the 4th Amend.
- No legitimate expectation of privacy in illegal activity, investigations that only reveal illegal activity is not a search.
4TH AMEND SEARCHES - 3
CANINE SNIFF - CAR
Conducting a dog sniff does not change the character of a traffic stop if it is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent's constitutionally protected interest in privacy."
A person has NO legitimate privacy interest in possessing contraband ,and thus, governmental conduct that ONLY reveals the possession of contraband compromises no legitimate privacy interest - Place
4TH AMENDMENT SEARCHES - 3
DEMONSTRATING PROBABLE CAUSE
Two Prong analysis of what to provide in affidavit to magistrate in establishing probable cause for warrrant.
1) Basis of Knowledge (underlying circumstances)
2) Veracity (credible or reliable)
Proven as independent of one another
WARRANTS AND PROBABLE CAUSE - 4
DEMONSTRATING PROBABLE CAUSE
Abandoned rigid Spinelli test and adopts "TOTALITY OF THE CIRCUMSTANCES"
- Magistrate to make a practical, common-sense decision whether given all the circumstances, there is a fair probability that contraband or evidence of crime will be found in particular place.
* Two prongs of Spinelli still a factor, but a balancing test instead of rigid test.
WARRANTS AND PROBABLE CAUSE - 5
GOOD FAITH EXCEPTION FOR DEFECTIVE WARRANTS
Where an officer acts in good faith in reliance on an invalid warrant, evidence obtained under thw arrant are NOT subject to exclusion
4 circumstances where suppression remains appropriate remedy:
• 1. Magistrate or judge issuing warrant was misled by info in an affidavit that affiant knew was false or would have known was false except for his reckless disregard of the truth.
• 2. Magistrate deemed to have wholly abdicated his judicial role (hardly every applicable).
• 3. Obviously apparent that officer has no probable cause to search.
• 4. Particularity requirement not sufficiently met as to place to be searched or things to be seized.
ATTACKING WARRANTS - 6
* franks hearing - challenge truthfulness of warrant application
GOOD FAITH EXCEPTION FOR DEFECTIVE WARRANTS
Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.
Sole purpose of excluding evidence is to deter police conduct, when police act in goodfaith reliance on binding appellate precedent, excluding the fruits of that search serves no deterrent purpose, and therefore exclusion would not apply.
• decision marks another step in the turn away from the principled justifications for the exclusionary rule toward a deterrence-only rationale
• "exclusion is not a personal constitutional right, nor is it designed to redress the injury of unconstitutional search, it is only applicable where it would lead to appreciable deterrence of future police violations.
ATTACKING WARRANTS - 6
PROBABLE CAUSE WITH MULTIPLE SUSPECTS
where three men were passengers in a car containing drugs, officers had probable cause to arrest all three because it was reasonable for the officer to infer a common enterprise among them.
Rule: Only need probable cause to arrest one in a multiple suspect situation.
ARREST - 6
ARRESTS IN PUBLIC
public arrests in the absence of a warrant permitted; probable cause still required.
ARREST - 6
CAN ARREST FOR ANYTHING CRIMINAL (TRAFFIC TICKET)
A custodial arrest is always reasonable if the officer has probable cause of a criminal violation.
ARREST - 6
DEFINITION OF SEIZURE - To be a seizure for 4th amendment purposes, "a reasonable person would have believed that he was not free to leave."
No seizure occurred when in airport concourse, officers approach D and ask to see her airline ticket and ID. After seeing a discrepancy between ticket and ID, officers returned ticket and ID and asked if she would follow them to private area; she did and gave officers consent to search her bags. Drugs were found.
o This was an encounter because suspect was free to leave- could have been Joe Morgan.
o No suppression because no intrusion upon any constitutionally protected interest.
STOP V. ENCOUNTER - 8
NOT A SEIZURE
three officers interact with and question bus passengers at normal stop.
o Court says that officers did not need to tell the passengers they could refuse to engage.
o Under Bostick, if a reasonable person would feel free to terminate the encounter, then he or she has not been seized.
STOP V. ENCOUNTER
REASONABLE STOP AND FRISK - LIMITED WARRANTLESS SEARCHES WITH LESS THAN PROBABLE CAUSE
made constitutionally permissible warrantless searches and seizures in limited circumstances. The Supreme Court ruled that in determining whether the Warrant and Probable Cause clauses of the Fourth Amendment apply to a given search and/or seizure, the "central inquiry" is the reasonableness of the government's activity under the circumstances; "reasonableness" is assessed by balancing the need to search or seize against the invasion the search or seizure entails. This is known as the "reasonableness balancing" test.
- A STOP is justified by a "reasonable suspicion"(objective standard) that criminal activity may be afoot.
- Stop occurs when a police officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen
A FRISK is justified by a "reasonable suspicion" the persons with whom the officer is dealing may be armed and presently dangerous.
The purpose of the Terry search is limited to the sole purpose of determining whether the suspect is armed.
STOP AND FRISK - 9
POST - TERRY CASE
officer gets tip from informant that driver of nearby vehicle has gun in his waistband and narcotics. When officer pulls suspect over and reaches into car and pulls fully loaded revolver from suspect's waistband, no violation of Terry because the officer ONLY NEEDS to have reasonable suspicion under the circumstances.
STOP AND FRISK - 9
POST - TERRY CASE
• officers in the course of a legal stop of an automobile have an AUTOMATIC RIGHT under Terry to order the driver out of the vehicle.
STOP AND FRISK - 9
POST - TERRY CASE
Rule from MIMMS (automatic right under terry to order the driver out of the vehicle) also APPLIES TO PASSENGERS, so officers can automatically ask the passengers to get out of the car as well.
STOP AND FRISK - 9
Officer must have reasonable suspicion that the passenger or driver is armed and dangerous before conducting frisk
STOP AND FRISK - 9
UNCORROBORATED ANONYMOUS TIP
anonymous caller said young black male at bus stop, wearing plaid shirt, had a gun. An officer seized a gun from J.L.'s pocket. Held unconstitutional.
No showing that tipster had knowledge of concealed criminal activity, so officer's had no reasonable suspicion to stop and frisk J.L.
An anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk.
*White - tip that demonstrated inside informatoin was significantly corroborated
WHAT CONSTITUTES REASONABLE SUSPICION - 10
TOTALITY OF THE CIRCUMSTANCES - REASONABLE SUSPICION
*- When reviewing reasonable suspicion determination, court will look at totality of the circumstances of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing.
o Family in minivan near US/Mexico border. Checkpoint set up and magnetic sensors also used- around the time the shift change occurred. Officer follows vehicle. Driver doesn't look at officer as it passes officer, children have legs elevated; wave for 4 to 5 minutes. Driver exits at last exit before checkpoint.
o Based on officer's firsthand observation and experience, officer makes a specialized, objective determination.
WHAT CONSTITUTES REASONABLE SUSPICION? - 10
SEARCHES FOR POLICE PROTECTION - GRAB AREA
Terry permits a limited examination of an area from which a person, who police reasonably believe is dangerous, might gain control of a weapon.
Long permits a protective search beyond the suspect's person.
Searching passenger of compartment of car ok because even if suspect can't reach weapon during stop, the suspect will be permitted to reenter his automobile and will then have access to any weapons inside.
Therefore, this holding depend on the suspect being able to get back in the car.
NEED TO ASK IF SUSPECT WILL BE ABLE TO GET BACK IN CAR, OR IF HE IS IN POLICE CUSTODY.
MISC. TERRY-RELATED ISSUES -11
FAILURE TO PROVIDE IDENTIFICATION
an officer has the right to demand identification as part of an investigation during a Terry stop.
But doesn't authorize officer to arrest for someone for not providing ID.
MISC TERRY - RELATED ISSUES -11
CONSENSUAL ENCOUNTER AFTER A STOP HAS ENDED
A Terry stop must end when the reason for the stop has come to an end. When the officers have no reasonable suspicion to investigate any matter other than the one they were stopped for, the stop has to end.
1. The officer can convert the original situation back into an encounter. "Here is your citation you're free to go. Oh wait, one more thing, you don't have any guns on you do you? No? Can I search the vehicle?"
Suspect doesn't have to be told the stop is over and he is free to go.
STOP AFTER A STOP - 11
SEARCH INCIDENT TO ARREST - EXCEPTION TO WARRANT REQUIREMENT AREA WITHIN IMMEDIATE CONTROL OF SUSPECT
after lawful arrest, officer searches entire house. Court says the only area searchable without a warrant is that "within suspect's immediate control"—construing that phrase to mean that area from which he might gain possession of a weapon or destructible evidence.
**NOTE: Gant might modify this case.
SEARCHES - EXCEPTION - 12
SEARCH INCIDENT TO ARREST - PROTECTIVE SWEEP
police can conduct a "protective sweep," which is a quick and limited search of a premises, for people, incident to arrest and conducted to protect the safety of police officers or others.
Only need reasonable suspicion.
Premises equivalent of Terry
In this case in suspect's home to look for
∆'s accomplice. Police did protective sweep and didn't find accomplice, but found clothes that tied him to robbery. Court upheld the protective sweep.
However, police can only look for what they have a right to look for, in the place where it could possibly be.
Can only look for a person where a person could possibly be.
SEARCHES - EXCEPTION - 12
SEARCH INCIDENT TO ARREST IN VEHICLES
Police can search a vehicle incident to arrest if:
o 1. An arrestee is within reaching distance of the vehicle; OR
o 2. If it is reasonable to believe the vehicle contains evidence of the offense of arrest.
There must be a danger that the arrestee has access to the car at the time of the search.
• This is different than Chimmel where courts have usually held at the time of arrest.
SEARCHES - 13
NO SEARCH PURSUANT TO CITATION
when issuing a citation instead of arresting a suspect, the search incident to arrest exception does NOT apply.
o Knowles pulled over for speeding. Given a citation. Could have been arrested under IA law but was not. Car searched and bag of pot and pipe found. This is a violation of 4th amendment.
PRE-TEXTUAL STOPS - OKAY
an individual officer's subjective intentions are irrelevant to the 4th amendment validity of a traffic stop that is justified objectively by REASONABLE SUSPICION** to believe that a traffic violation has occurred.
o Suspect looks to friends lap at intersection. Turns with no blinker and speeds away. Officer has probable cause to believe suspect violated traffic code and pulls suspect over. Officer sees two bags of drugs in suspect's hands. Stop reasonable under 4th amendment and evidence discovered thereby is admissible.
o a traffic stop can only be used as a pretext under Whren if the officer has reasonable suspicion to believe that the motorist has actually violated a traffic law.
SEARCHES - 14
CONTAINERS IN VEHICLES
if there is probable cause to search a car, then the entire car—including any closed container found therein—may be searched without a warrant. But if there is probable cause only as to the container in the car, then only the container may be searched.
o Search of the entire vehicle unreasonable under 4th amendment if there is only probable cause for a single bag or item within the car.
o Holding: Presence of package in car does not confer probable cause to search the whole car.
SEARCHES - 15
POLICE AND PUBLIC SAFETY - EXIGENT CIRCUMSTANCE
law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.
• Police called about loud party, see kids drinking in backyard, enter backyard and see altercation in kitchen; officers enter house and altercation stops.
• Here, community caretaking function is important for the fact that police could get to a place they otherwise might not be- the backyard.
• Officers had an objectively reasonable basis to believe that the injured adult might need help and that the violence in the kitchen was just beginning.
*other exigent circumstances: Hot pursuit (warden) & risk of destruction of evidence.
WARRANTLESS SEARCH - 16
IMPERMISSIBLY CREATED EXIGENCY - DESTRUCTION OF PROPERTY
warrantless searches conducted in exigent circumstances do not violate the Fourth Amendment so long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment.
• Police may enter a home without a warrant in response to an emergency (including the imminent destruction of evidence) so long as the police do not themselves create the emergency through conduct that violates the Fourth Amendment.
WARRANTLESS SEARCH - EXIGENT CIRCUMSTANCES - 16
BUSINESS INSPECTION - ADMINISTRATIVE SEARCHES -SUSPICIONLESS
NYPD entered respondent's auto junkyard to perform inspection pursuant to NY law. Court held this warrantless search was ok.
A warrantless (suspicionless) inspection of a pervasively regulated business is reasonable if three criteria met:
• 1. Substantial government interest in regulating pervasively regulated business.
• 2. Necessary to further the regulatory scheme.
• 3. The regulatory statute must perform 2 basic functions of a warrant:
o 1. Advise the owner a search is being made pursuant to law; AND
o 2. Limit the discretion of the inspecting officers (time, place, scope).
MUST be closely regulated industry, otherwise need probable cause for inspection.
o Pervasively regulated industries: trucking (associated with drug transport), towing, pawn shops, taverns, dance halls.
ADMINISTRATIVE SEARCHES - 16
SPECIAL NEEDS SEARCHES - SUSPICIONLESS SEARCH -TEXT MESSAGES
Text messageing search of public employee as special need
o audit of a police officer's text messages was reasonable because it was motivated by a legitimate work- related purpose and was not excessive in scope.
SPECIAL NEEDS SEARCHES - 17
DRUG CHECKPOINTS - SUSPICIONLESS SEIZURE - SUBJECTIVE INTENT
vehicle checkpoints to check for drugs in cars unconstitutional because the purpose of the program is to uncover evidence of normal criminal activity; this is different than checkpoint programs designed to serve purposes closely related to problems of policing the border or ensuring roadway safety.
Could carry out this same plan by looking for drunk driving, then use Gant to look for evidence of intoxication in vehicle, where you find drugs.
Could still have a dog sniff outside the car because this not a search.
o Subjective intent matters here - primary purpose of the checkpoint
ROADBLOCK, CHECKPOINTS AND SUSPICIONLESS SEIZURES - 19
THIRD PARTY CONSENT WHEN D IS PRESENT AND OBJECTING
a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to the person who refuses.
In this case, wife said police could search for drug-related items; husband doesn't consent to search. Warrantless search unreasonable as to husband.
Police can run around this rule if they wait for a time when the non-consenting person is gone. Rule operates only if objecting co-tenant is at home asserting the right.
HOWEVER, being at home is not enough if the person is not at the front door.
CONSENT SEARCHES - 21
standing issue synonymous with Katz issue- whether a person had a legitimate expectation of privacy.
o Passengers in vehicle do not ordinarily have standing to suppress items in automobile unless there's some particular reason to believe they do.
In Rakas, passengers seeking to suppress do not own vehicle. Court says no legitimate expectation of privacy in passenger compartment of vehicle just by being in it.
STANDING - 22
MIRANDA DO NOT PURGE TAINT OF ILLEGAL ARREST
Miranda warnings not enough to break the causal chain because confession occurred only 2 hours after illegal arrest, and with no intervening event.
o Have to look at what may have intervened, and the flagrancy of the violation.
The more flagrant the violation, the more the officer has disregarded a person's constitutional rights.
• Flagrancy can affect the causation analysis so something that is a technical violation might allow admission of evidence, while a more flagrant violation might not, even though causal effect might be the same.
Miranda warnings DO NOT purged the taint of an illegal arrest
FRUITS OF THE POISONOUS TREE
A search warrant may be issued to search for and seize:
-property acquired by theft
-property specially designed, made, or adapted and used in offense
-Arms and ammunition
-Weapons prohibited by the penal code
When property or person are found pursuant to a search warrant, the officer shall
-take possession of property and take it before a magistrate
-take any person directed to be arrest by the search warrant before a magistrate
When returning a search warrant, officer shall:
-state the manner in which it was executed
-deliver a copy of the inventory to the magistrate
-retain custody of property until magistrate directs where it shall go
-Cannot take property out of county without court order
-Items (drugs) may be sent to lab
What Case discusses the Test For Probable Cause
Illinois v. Gates
What is the Test for Probable Cause
from the vantage point of a trained police officer Looking at the total circumstances, Whether a prudent police officer would have good reason to believe that a crime has been committed and this is the person that has committed it.
What are the parts of a warrant
(2) the affidavit: Sworn Statement
Order: Where the judge signs.
Is probable cause needed to investigate
NO! Probable Cause is not needed to investigate.
The four corners rule is used for what in crime Pro
A Judge/Magistrate can only issue a warrant based on what is on the corners of the affidavit.
What case explains the Knock and Announce Rule
Hudson v. Michigan
What is the knock and Announce Rule
When police arrive to execute a warrant the announce
When is the knock and announce not necessary in executing a warrant.
Hudson v. Michigan : It is not necessary when circumstances present. i.e.. threat of violence, destruction of evidence or if knocking would be futile.
What is the purpose of the knock and announce Rule
protect life, destruction of property protect privacy and dignity.
When can an officer Arrest?
For Felony and Misdemeanor committed in presence and for Probable cause of that a person committed a felony ONLY NoT a misdemeanor.
What Case state arrest rule for Felony and misdemeanors
Atwater v. Lago Vista
What does the Peyton Doctrine State
In the absence of an emergency or (6) exigent circumstances police cannot enter a home without a search or arrest warrant .
What case establishes search incident to arrest.
United States v. Robinson
What is search incident to arrest .
following a lawful custodial rest a full search of search of the person is an exception to the warrant requirement.
What case establishes the Wing Span test
Chimel v. Ca
What is the Chimel Test
A search incident to arrest may not exceed the area within the reach of the arrestee.
What case establishes Security/ Protective Sweeps?
Maryland v. Buie
What is a protective Sweep?
A protective sweep is a quicka nd limited search of a premises incident to an arrest and conducted to protect the safety of police officers and others. It is narrowly confounded to a cursor visual inspection of these places people may b hiding .
What case Established Terry Stops
Terry v. Ohio
What is the standard for Terry Stops ?
Reasonable Articulable Suspicion: Suspicion that criminal activity is afoot.
United States v. Chawick
Police conduct foot locker after suspects in custody for an hour and they has exclusive control over footlocker : No under search incident to arrest.
Define Seizure ?
Police physically restraint so that a reasonable person believes they are not free to go.
What is the difference between arrest and a stop.
Time. Arrest is prolonged custody.
What is the standard to arrest a person?
What is the doctrine of imputed knowledge?
If one police officer knows it is an excepted principal that all officers know.
What case establishes encounter
US. v. Burrell
What is the Sock Rule?
What were you allowed to search for in the first place .The thing that is being looked for has to be able to fit in what the police are searching.
Is a warrant needed for a terry Stop?
No! Only Reasonable Articuable Suspicion.
Can Hearsay be used to conduct a terry stop?
PG 629. Yes Hersay from an informant can be used to to obtain Reasonable articualble suspicion for a Terry Stop.
What does the plain View Doctrine Turn On?
Whether the officer has a legal right to be where they where.
What devices other than binocular can police use in plain view searches?
Kyllo v. US police cannot use scanners or infrared.
What case stands for the proposition of electronic?
Kyllo v. US
What is the process for breaking down Search Warrants?
1) Start with the 4th Amendment.
2) Look for statement that shows the experience and training of police officer.
3) If there is an informant look for Reliability
4) Look for Independent police work.
What case discusses the good faith doctrine ?
US v. Leon
What is the good faith doctrine?
If police act under a reasonable faith that a warrant has been obtained and is proper then they are covered.
What case allows police to search a car a suspect just got out?
Thorton v. US: So long as a person is a recent occupant of a vehicle officers may search that vehicle incident to arrest.
Does an unlawful arrest deprive the court of jurisdiction?
No an unlawful arrest does not deprive the court of jurisdiction.
What cases establish Vehicle Searches W/O Warrant for PC.
United States v. Ross:
US v. Ross (vehicle exception )?
Supported by probable cause a police officer can search a vehicle as though he had a warrant from a magistrate.
What is the container rule?
If you have authority to search a vehicle you can search a container that can conceal the object of the search.
What is a stop
detention of a person briefly for questioning upons suspicion that he may be connected with criminal activity .
What is needed to conduct a Terry STOP
Reasonable Articulable Suspicion RAS
From a terry stop what is needed for a police officer to frisk.
Suspicion of danger. officer need not be that the individual be armed the issue iw whether a reasoning prudent man in the circumstances would be warranted in the belief that his safety or that of others in in danger .
if the stop and Frisk gives rise to probable cause what can the police do.
THe police can now arrest.
Define Reasonable Articuable Suspicion
Based on the totality of the circumstances that criminal activity is afoot.
Holding of Tery v. Ohio
We hold that where police officer observe unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing with may be armed and present dangerous.
What is greater RAS or Probable Cause
Probable Cause is higher: Arrest can occur for with PC not RAS. The difference is the Quality of information RAS is less reliable PC is more reliable.
If a vehicle stopped unlawfully and searched is that search lawful?
No the Carroll doctrine itself may justify the stop that is the stop can be made if there is probable cause to believe that the vehicle contains contraband or evidence of criminal activity.
What is a prerequisite for a valid Carrolle Search .
Probable cause .
U.S. v. Ross stands for what rule and exception
Container Rule and the vehicle exception
What invalidates Consent
Duress, threats violence, coercion, deception, illegal arrest, illegal arrest
The Exclusionary Rule
- Remedy under the 4th Amend.
- If search or seizure is found to be illegal, that evidence is excluded at trial
Bond v. United States
- Held the officer's physical manipulation of the exterior of a bag so as to determine it's contents is a search
- Expects others to feel the bag, but not in an "exploratory manner" (this is the intrusion)
Ohio v. Mapp
- Created the Exclusionary Rule
- Held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in state court"
2-Pronged Test for "Search"
1) A person has exhibited an actual (subjective) expectation of privacy
2) That expectation of privacy is one that society is prepared to recognize as "reasonable" (objective)
- Created in Katz v. U.S.
Katz v. United States
- Listening in on a conversation inside a phone booth is a "search"
- By closing the booth door, Katz took steps to create a "reasonable expectation of privacy"
- Harlon's concurrence created the 2-prong "search" test
Open Fields Doctrine
An individual may not legitimately demand privacy for activities conducted out of doors in fields, except the area immediately surrounding the home (curtilage)
Oliver v. United States
- Police get anon. tip and searched his land even though there was a "No Trespassing: Violators will be shot" sign
- Did not count as a "search" because they did not intrude on the curtilage
4 Factors to Determine if the Area is Considered the Curtilage
1) Proximity of the area to the home
2) Whether the area is inside an enclosure
3) The nature of the use of the area
4) Steps taken by the defendant to protect the area from view of the public
California v. Ciralo
Held that aerial surveillance from 1,000 feet is not a search, even inside the curtilage
United States v. Place
A drug dog's "sniff test" is not a search.
United States v. White
- Recording of a conversation is not a "search" (informant wearing a wire)
- You assume the risk when you tell someone that they will rat you out
California v. Greenwood
- Warrantless search and seizure of garbage left out at the curb is only a violation if the D manifested a "reasonable expectation of privacy" in the way they discarded their trash
Rule for Electronic Tracking Devices
- From U.S. v. Karo
- 4th Am. violation when the gov't surreptitiously employs an electronic device to obtain information that it could not have attained by observation from outside the curtilage of the house
Rule for Technology not Generally Available to the Public
- Highly sophisticated surveillance equipment is subject to 4th amendment scrutiny (Dow Chemical v. U.S.)
- The use of "sense-enhancing" technology that gathers information regarding the interior of the home that could not have otherwise been gathered without a physical intrusion constitutes a search (Kyllo v. U.S.)
- Really heavily analyze "Generally Available to the Public" (make both sides)
The Rule for "Seizure"
- Occurs when an officer, by means of physical force OR show of authority, in some way restrains the liberty of a citizen (Terry)
- Requires that a reasonable person would not feel free to disregard the police and leave (must not be a consensual encounter) (Florida v. Bostick)
- Police means must be "means intentionally applied" (Brower v. Inyo)
What is required for a seizure?
- May not be detained for even a second without "objective reasonable suspicion"
- Must be intentional on behalf of the police (no such thing as unintentional seizure) (police "desire" does not matter if seizure is still accidental)
Factors tending to show Coercive Nature of Encounter (for purposes of seizure)
1) Whether officer used his gun in a threatening way (holding it, outside of pouch)
2) Whether officer informed the citizen they were free to refuse consent
3) The ways used to limit D's movement (handcuffed, blocked exits, etc.)
4) Tone of voice/overall politeness of the officer
When does seizure occur during a suspect's fleeing?
- Happens when suspect submits to show of authority OR when police apply physical force
- Anything a suspect throws during flight is considered abandonment and therefore allowed to be seized by police
To Whom does the 4th Amend. Apply
- (As a limitation on illegal S&S) Applies to state actors at ALL levels
- (As a right that can be asserted) Applies to "the people": Legal aliens, US citizens (even outside the US), Illegal aliens in the US
Probable Cause Standard (search)
- That amount of information which would warrant a person of reasonable caution in the belief that a crime has been or is being committed AND items tending to show criminality will be found in the place of the search
Probable Cause Standard (seizure)
- That amount of information which would warrant a person of reasonable caution in the belief that a crime has been or is being committed AND that the arrestee committed the offense
Is warrant forum shopping allowed?
Probable Cause Test
A "totality-of-the-circumstances" analysis
Two Elements of PC from an Informant
2) Basis of Knowledge (personal knowledge much better than hearsay)
Ways to show Informant's Credibility
1) Track record (proven to be reliable in the past)
2) Controlled buy
3) Predictive of future events that officers can use to corroborate story
4) Record of being an honest citizen, and if tip fabricated would subject informant to criminal liability
5) Any other indicia of reliability
Judicial Review of Probable Cause
- A magistrate's finding of PC should be given GREAT deference
- However, PC is reviewed de novo on appeal (however historical facts should only be checked for clear error, great weight should be given to rational inferences)
Scope of Consent when consenting to a search
- You only consent to what a reasonable person would expect
- "Searching the car" does not include dismantling the car
Public Place Arrest Rule
A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is allowed as long as there is sufficient probable cause (Maryland v. Pringle and Atwater)
- A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person (Ybarra v. Illinois)
- A search and seizure of an individual must be supported by PC particularized w/ respect to that person (Ybarra v. Illinois)
- Any inference that everyone on the scene of a crime is a party to it must disappear if the Gov't informer singles out the guilty party (U.S. v. Di Re)
Warrant Requirements (generally)
2) "Neutral and detached" magistrate
3) Oath or affirmation
4) Proper Execution
"Particularity" Warrant Requirement
- Warrant must particularly describe
1) The place to be searched: must not be ambiguous, but clarifying information will fix it if they search the right place
2) The items to be seized (must contain a purpose that limits the scope of the search in both time and space) AND/OR
3) The person to be seized (in the case of an arrest)
"Neutral and Detached" Magistrate Warrant Requirement
Magistrate must not have any interest in the investigation or the search/seizure
"Oath or Affirmation" Warrant Requirement
- Affidavits used to prove PC for warrant must not be perjured or made with reckless disregard for the truth
- "Negligent" or "innocent" falsehoods will not invalidate a warrant
Knock and Announce Rule
- Absent some law enforcement interest in an unannounced intrusion, the 4th Amendment requires police to knock and announce their presence (Wilson v. Arkansas)
- Police may forego the knock and announce if they have a reasonable suspicion that announcing would be "dangerous or futile" or that it would inhibit the investigation (i.e. "destruction of evidence") (Richards v. Wisconsin)
Who has authority to be present in the execution of a warrant?
- Only the police and individuals necessary to identify stolen goods
- No media or other third parties in any circumstances
Exceptions to Warrant Requirement (generally)
1) Exigent Circumstances
2) Plain View Doctrine
3) Automobile Exception
4) Search Incident to Arrest
Exigent Circumstances Rules
- Can be danger to officers/third parties/public/evidence that makes delay of entry unreasonable
- Must balance the state's interest against the individual's privacy interest
- Burden is on the government to demonstrate need for warrantless entry
- Important factor is the gravity of the underlying offense
- Warrantless search must end when the exigency ends
Plain View Doctrine
- The right to seize evidence that is in plain view, requires 2 circumstances:
1) State's agents must have prior justification for entry into place where object was found (PC+warrant or warrant exception, or consent)
2) It is immediately apparent (probable cause standard) that the item be evidence of crime or contraband
- No requirement that the evidence must be discovered inadvertently (Horton v. California)
Arizona v. Hicks
- Bullet fired through an apt. floor, police enter looking for shooter/victims/weapons, they seize weapons and then notice stereo equipment, wrote down serial numbers
- Exigent circumstances ended when weapons were seized, so stereo equipment is out (needed a warrant and independent PC)
- When police stop a vehicle on open road, or otherwise come across it in a public place, and have PC to search the vehicle, they may do so immediately, without securing a warrant, or they may take the vehicle to a police impound and search it there
- When a warrantless search of a vehicle is justified, scope is the same as with a warrant (may search any container inside the automobile as long as the object of the search may be found there)
- Not applicable when vehicle is parked in private driveway
- Applies to mobile homes, even if parked and used as a permanent home
Rule for Searching Automobile Passenger's Belongings
- Officers with PC to search a car may search passengers' belongings in the car that may be capable of concealing the object of the search
- Does not justify body search of the passengers (analyze here: pockets are off limits, so is the purse a part of the body?)
Arrest Requirements (generally)
1) A person cannot be arrested without probable cause (seizure definition)
2) Warrant or warrant exception required (must have a warrant to arrest someone in their private home)
3) Must bring any suspect arrested without a warrant in front of a neutral magistrate within 48 hours
4) Illegal arrest does not insulate subject from being convicted of a crime
5) In order to arrest someone in the home of a 3rd party, state actor must have search warrant AND arrest warrant
6) If PC exists for even a very minor offense, officer is authorized to make a full custodial arrest
Search Incident to Arrest
- A state actor may search a subject, incident to their arrest
- If arrest is invalid, so is the subsequent search
- May create pretext for search (set the suspect up for a traffic violation in order to search for drugs)
- Search may extend to the area within the immediate control of the arrestee
- No such thing as search incident to citation
Searching Automobile Incident to Arrest
- Area of immediate control is judged at the time of arrest
- Can search a car if the arrestee is a recent occupant (glove box must have been accessible at the time of arrest and must be reasonably believed that the vehicle contains evidence of the offense)
- May inventory the contents of a car or the belongings of an arrestee for administrative purposes, without probable cause or an arrest warrant or even a suspicion that evidence of criminality will be found
- There is a good faith requirement
- An open-ended standard that permits the court to consider factors not normally taken into account in the traditional warrant/warrant exception and PC formula
Winston v. Lee
- Reasonableness case, shopkeeper wounded during attempted robbery, D found with bullet lodged in his body
- Even with PC and warrant, unreasonable to "seize" the bullet because it would require an invasive surgery
The "Terry" Stop and Pat-Down Rule
- When a police officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior, he ID's himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him"
- From Terry v. Ohio
- No longer required to ID himself as an officer or to ask "reasonable" questions
Terry v. Ohio
- Officer patrolling around shopping center, sees 2 guys looking into windows, etc, then they meet up with 3rd guy. Officer approaches, they mumble something, so he pats them down and finds guns on two of them
- Even absent PC of evidence of criminality, search and seizure was still held as reasonable for officer safety
- Created Terry Stop rule
Reasonable Suspicion Standard
- An amount of information less than probable cause, that is based on "specific articulable facts", taken together with "rational inferences"
- Anonymous tips must be reliable in their assertion of criminality to get to RS
- Reasonable Suspicion of a crime = justification for Terry Stop
- Reasonable Suspicion of a weapon = Terry Pat-Down
Requirements and Scope of Terry Stops/Pat-Downs
- Must have a reasonable suspicion of criminal activity for stop
- Must have reasonable suspicion of the presence of a weapon for a pat-down
- Pat-down must be EXTERIOR of clothes only and may not manipulate objects in pockets
- No rigid time limitation but must be reasonable (20 minutes or less is probably reasonable, more than 20 minutes puts burden on police to show diligence)
- Allowed to ask passengers in a stopped car to exit to conduct pat-down
- Stopping and investigating someone who fits a profile is reasonable under the 4th Amend.
- The more descriptive the profile and the better the suspect fits it, the more reasonable the stop becomes
Does police pretext negate PC and reasonableness?
- No, with most things, the officer's subjective intent is irrelevant
- Exception is the good-faith requirement for an inventory/administrative search
State Statute Effects on a Terry Stop
- A state statute MAY require suspect to ID himself during a VALID Terry stop
- A Terry stop MAY NOT be justified (solely) by a statute requiring a suspect to ID himself
Governmental Searches Outside the Scope of General Law Enforcement
- "Special Needs" searches and seizures
- Health and safety searches
- Probation officer searches
- Administrative searches
- Inventory searches
- Special search outside of the scope of law enforcement
- Requires no level of suspicion
- Has to do with public health and safety
- Especially reasonable in "closely regulated fields"
- Must be for a special interest that is not general law enforcement
- If it is just a random roadblock to catch random criminals, not reasonable
Special Needs that Justify a Roadblock
- DUI Checkpoint
- Drivers License/Insurance Checkpoint
- Immigration Checkpoints near border
- Roadblock designed to illicit information (check vehicles for damage to find a hit and run suspect)
- Roadblock designed to find a victim
- 4th Amendment only applies to STATE ACTORS
- Private orgs/school/hospital/employer searches do not allow a 4th amendment challenge
- Consent can waive an individual's rights to almost anything
- Consent must be valid to be effective (must be voluntarily given)
- Consent must not be coerced - ANALYZE HERE
Five Factors to consider if Consent was Voluntarily Given
1) Knowledge - Officer not "required" to inform person of the right not to consent, but it is a factor
2) Whether consentor is in custody
3) Show of force/threats
5) Personal characteristics of consentor (comfort level, fatigue, intelligence, etc)
- Valid if the third party has joint access or control for most purposes
- Has held to be valid if the police reasonably believed that the third party possessed common authority to consent to the search
- Scope is what a reasonable person would have understood the consent to include
Who has standing to invoke Exclusionary Rule?
- Only the individual defendant whose reasonable expectation of privacy was infringed upon
- Almost all social guests have standing to object
- Business guests likely do not have standing
- Passenger in car has standing to object to search of purse but not glove compartment
"Fruit of the Poisonous Tree" Doctrine
- Extends the limits of exclusionary rule to reach and exclude ALL evidence derived from an illegal search/seizure
Exceptions to Fruit of the Poisonous Tree Doctrine
1) Attenuation (a break in the causal chain)
2) Independent Source Exception (evidence was found from a valid, independent source)
3) Inevitable Discovery Exception (police would have inevitably found it)
4) Knock and Announce Exception (a failure to K&A does not invoke the exclusionary rule)
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