1. What are the two key questions in determining whether a search & seizure is governed by Fourth Amendment?
Was the search or seizure executed by a government agent?
Was there a reasonable expectation of privacy in the area searched or the item(s) seized?
1. What are the two categories of government agents?
Publicly paid police (on or off duty)
Private citizens (if and only if they are acting at the direction of the police)
1. What four areas does the Fourth Amendment protect citizens from search and seizure of?
Houses (including hotel rooms)
1. What area does home-based privacy protect?
"area of domestic use" immediately surrounding house (curtilage)
1. In general, what items are NOT protected under 4th Amendment?
Items that are sufficiently "public" in nature and therefore carry no reasonable expectation of privacy
1. What do all unprotected items have in common?
Knowing exposure to a third party
1. What are the eight known unprotected items? (mnemonic)
Patty Achieved AGlorious Victory Over Her Opponents Paint scrapings on outside of car, Account records held by a bank Air space, Garbage left at the curb Voice exemplars Odors Handwriting Open fields
1. What is required for a person to have standing to challenge the lawfulness of a search or seizure?
Violation of that individual's personal privacy rights
1. What question do we ask when determining whether an individual has standing to challenge search or seizure?
Does individual have a reasonable expectation of privacy?
2. What three questions do we ask to determined whether a search warrant satisfies the Fourth Amendment?
Is the warrant supported by probable cause and particularity?
If not, did police officers rely on a defective warrant in “good faith”?
Was the warrant properly executed by the police?
2. What does probable cause require?
Proof of a “fair probability” that contraband or evidence of crime will be found in the area searched
2. May police rely on information received from an informant (anonymous or not)? What is required?
YES, must corroborate enough of informant's tip so that magistrate can make a "common sense practical" determination
2. What two things must a valid warrant specify?
The place to be searched, AND
The item to be seized
2. Who must issue the warrant?
A neutral and detached magistrate
2. What are the four exceptions to the general rule that an officer's good faith overcomes a deficient warrant?
Egregiously lacks probable cause (no reasonable officer would rely)
Facially deficient in particularity
Knowing or reckless falsehoods
Magistrate biased toward prosecution
2. What are the two requirements of properly executing warrant?
Compliance with the warrant's terms and limitations
"Knock and Announce" Rule
2. What are the three exceptions to the Knock and Announce Rule?
Officer reasonably believes that knocking and announcing would be
Would inhibit the investigation
3. What are the eight exceptions to the warrant requirement? (mnemonic)
Exigent Circumstances, Search Incident to Arrest, Consent, Automobile, Plain View, Inventory, Special Needs, Terry "Stop and Frisk"
3. What the twoexigent circumstances?
Hot pursuit of fleeing felon (home of felon/3d party, evidence in plain sight)
3. What are the two justifications for a search incident to an arrest?
Officer safety, AND
The need to preserve evidence
3. When must a search incident to an arrest occur?
Contemporaneously in time and place of the arrest
3. Within what area may an officer conduct a search incident to an arrest?
"Wingspan" (body, clothing, and any container's within the arrestee's immediate control)
3. Within what area of an automobile may an officer conduct a search incident to an arrest?
Interior cabin, including closed containers, but NOT the trunk
3. Once "suspect" is secured, under what circumstances may the officer conduct a search incident to an arrest of an automobile?
ONLY IF officer has reason to believe that the vehicle may contain evidence relating to crime for which the arrest was made.
3. What two things must consent to a search be?
Voluntary and intelligent
3. If the person consenting to the search lacks actual authority to consent, is the consent still valid?
YES, as long as the officer reasonably believed that the consenting party had "actual" authority.
3. What are the three exceptions to apparent authority to give consent?
Present objecting spouse
3. When adults share a residence, who has the authority to consent to a search of the common areas within it?
Any or all of people who share the residence
3. If co-tenants with equal rights to use or occupy the premises disagree regarding consent to search common areas, who prevails?
The objecting party, as to areas over which they share dominion and control
3. What is the standard for searching an automobile?
Police officer needs probably cause to believe that contraband or evidence of crime will be found in the vehicle
3. Where can police officers search in an automobile?
The entire vehicleand they may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search.
3. When is a search of a vehicle incident to a routine traffic stop lawful?
An officer does not need probable cause a t the time the car is pulled over, provided that he acquires it before initiating the search.
3. What are the three requirements for seizure of an item in plain view?
Lawful access to place from which the item can be plainly seen
Lawful access to item itself, AND
The criminality of the item must be immediately apparent.
3. Under what two circumstances is an inventory search lawful?
Regulations reasonable in scope
Search complies with regulations
3. What does "special needs" refer to?
“special needs” of law enforcement, governmental employers and school officials beyond a general interest in law enforcement
3. What are the fourspecial needs searches?
Random drug testing
Government employee's desks and files
Student "effects" in public schools
3. In what three contexts are warrantless, random drug texts allowed?
Railroad employees following an impact accident
Customs agents responsible for drug interdiction, AND
Public school children who participate in any extracurricular activity
3. When are suspicionless, random drug tests not allowed?
Where the primary purpose is to gather criminal evidence for use by law enforcement
3. What is a Terry stop?
A brief detention or "seizure" for the purposes of investigating suspicious conduct
3. Where can a Terry stop occur?
3. When is person seized for Fourth Amendment purposes after a Terry stop?
When, based on the totality of the circumstances, a reasonable person would not feel free to leave OR to decline an officer's request to answer question
3. What three factors are considered when determining whether a person is "seized" as the result of a Terry stop?
Whether an officer brandished a weapon
The officer's tone & demeanor
Whether the individual was told she had the right to refuse to consent (not required)
3. When is a person being pursued by a police officer "seized" as the result of a Terry stop?
If he submits to the officer's authority by stopping OR if the officer physically retrains him
3. Who is seized in a Terry stop of a vehicle?
BOTH the driver AND the passengers are seized, such that EITHER can challenge the legality of the stop
3. When are dog sniffs allowed in a Terry stop of a vehicle?
Provided that "sniff" does not prolong the stop unreasonably
3. What is a Terry frisk?
A pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous
3. What may be seized in a Terry frisk?
Contraband recognized without manipulating the object
3. What is a Terry"car" frisk?
When conducting a [routine] traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect's vehicle, limited to those areas in which a weapon may be placed or hidden.
3. What evidentiary standard applies to Terry stops and frisks?
Reasonable suspicion (which is less than probable cause)
3. How does reasonable suspicion apply in Terry stops?
It requires specific and articulable facts that inform an officer's belief that criminal activity is present ("afoot")
3. How does reasonable suspicion apply in Terry frisks?
It requires specific and articulable facts that suggest that a suspect is armed and dangerous
4. To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court?
EXCLUSIONARY RULE: Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.
4. What are the four limits on the exclusionary rule?
Case-in-chief v. cross-examination (available for impeachment)
"Knock and announce" violations (suppression not required)
An officer's reasonable mistake (exclusionary rule does not apply)
"Fruit of the Poisonous Tree"
4. What is derivative or "secondary" evidence (i.e., "fruit of the poisonous tree")?
Evidence (both physical and testimonial) obtained by exploiting prior unconstitutional conduct.
4. How is "fruit of the poisonous tree" nullified?
By showing a break in the causal link between the original illegality and the criminal evidence that is later discovered
4. In what three instances is "fruit of the poisonous tree" not excluded?
"Independent Source" doctrine
"Inevitable Discovery" doctrine
4. What is the "independent source" doctrine?
Applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality (i.e., no causal link)
4. What is the "inevitable discovery" rule?
Applies where the evidence would necessarily have been discovered through lawful investigation.
4. What is the "attenuation" doctrine?
Admits derivative evidence where the defendant's free will has been restored through the passage of time and intervening events
Wiretapping/Eavesdropping: What are the four requirements of a wiretapping warrant?
Suspected persons named
Crime has been committed (probable cause)
Conversation, described with particularity
Time, must be strictly limited
Wiretapping/Eavesdropping: What is the "unreliable ear" doctrine and assumption of risk?
If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no Fourth Amendment rights; you assume the risk that the other party will not keep your conversations private
Arrest: In what two situations does an arrest occur?
Whenever the police take someone into custody against her will for prosecution or interrogation
When police compel someone to come to the police station questioning or fingerprinting (de facto arrest)
Arrest: What standard of proof applies to arrests?
Arrest: For what offenses does the Fourth Amendment permit a custodial arrest?
All offenses, even those punishable by a monetary fine ONLY.
Arrest: In what situation may a police officer arrest a suspect without a warrant?
FELONIES: When suspect is in a public place
Arrest: In what three situations do you need a warrant to arrest someone?
In the suspect's home (absent emergency)
In a third party's home (both arrest warrant AND search warrant required)
Arrest: What is the "common enterprise" theory?
In a traffic stop, where officer discovers evidence of crime suggesting a common unlawful enterprise b/t driver and passenger(s), officer may arrest any or all of them, based on reasonable inference of shared dominion & control over contraband
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