Crim Pro

To fall under the protection of the Fourth Amendment, an unreasonable search or seizure must be conducted by a government actor.

An unreasonable search occurs when:

1) Government invades a place protected by a reasonable expectation of privacy; or

2) Government physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information

The Fourth Amendment protects against unreasonable searches of a house, as well as the area immediately surrounding a house (CURTILAGE)

1) The proximity of the area to the home;
2) Whether the area is included within an enclosure surrounding the home;
3) The nature of the uses to which the area is put; and
4) The steps taken by the resident to protect the area from observation by the public

Government intrusion on private property outside the cartilage of a home (such as a farmer's field) is not a search.

Key:
-The owner does not have a reasonable (objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and "no trespassing" signs are posted

A prison inmate has no reasonable expectation of privacy in his cell

Papers:
-Business records, diaries, files
-Does NOT include papers transferred to a third party (i.e. checks given by a customer to a bank)

Effects:
-moveable property, such as bags, purses, automobiles, containers

Note: 4A does NOT afford a reasonable expectation of privacy with regard to a smell emanating from a person's effects

Stopping a car constitutes a seizure of the driver AND any passengers

-There is a LESSER expectation of privacy in an automobile than a home

Officers must have an articulable, reasonable suspicion of a violation of the law to stop ("seize") an automobile

A motor home IS subject to the automobile exception, because of its "ready mobility" and "reduced expectation of privacy because of the heavy regulation of vehicles capable of traveling on highways"

-Regardless of how much it "possessed some attributes of a home"

Note:
-Automobile exception does not include vehicles parked within private property where there is a reasonable expectation of privacy (which includes a home and its surrounding curtilage)

Standard:
-The stop must be based on neutral, articulable standards and its purpose must be closely related to an issue affecting automobiles
-i.e checkppoint to perform a sobriety test

Key:
Police may lawfully stop an automobile at a fixed checkpoint without a reasonable, individualized suspicion of a violation of the law

4A Protects:
-Conversations (when there is a reasonable expectation of privacy)
-Blood Samples

4A Does NOT Protect:
-Abandoned Property
-Physical Characteristics (handwriting)
-Breath samples

Flyover (airplane or helicopter)
-4A NOT violated if inspection is conducted from at least 400 feet in the air

Commonly tested violations of 4A:

1) attaching a device to a person's body without consent in order to track that person's movements
2) collection by law enforcement of cell-site location information records from wireless carriers in order to track a suspect's whereabouts
3) use of a thermal sensing device to explore the details of a dwelling that would previously have been unknowable without physical intrusion
4) use of electronic listening device to eavesdrop from a public phone booth
5) physically intruding upon a suspect's property to install a technological device (i.e. GPS tracker on a car)

Use of a trained dog to sniff for the presence of drugs is a search if it involves physical intrusion onto constitutionally protected property

Key:
-Absent physical intrusion, the use of drug-sniffing dogs does not violate a reasonable expectation of privacy (i.e. car, luggage in an airport)

A valid search warrant:

1) Must be issued by a neutral and detached magistrate
2) Must be based on probable cause
3) Must be supported by oath or affirmation
4) Must describe with particularity the places to be searched and the items to be seized

Key:
-Warrantless searches are per se unreasonable uness the search satifies one of the exceptions to the warrant requirement

Requires a police officer to have more than reasonable suspicion that evidence of illegal conduct will be found, but does not require the police officer to be certain that such evidence will be uncovered

1) Police officer's personal observations;
2) Information from a reliable, known informant or from an unknown informant that can be independenly verified (based on totality of the circumstances); or
3) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches

Generally, a search warrant that is valid on its face may not be attacked by a defendant as lacking in probable cause

A defendant can challenge a facially valid warrant when, by the preponderance of the evidence, that:
1) the affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and
2) the false statements were necessary to the finding of probable cause

-A search warrant must describe with particularity the place to be searched and the objects to be seized
-Warrants that (in addition to specific items to be seized) refer to "other fruits, instrumentalities, and evidence of the crime at this time unknown" are not converted into illegal general warrants by the inclusions of such language.
-Reference to a crime=limited to a particular crime (rather than any crime)
-A warrant need not specify the manner of its execution

Who:
-Must be executed by a police officer

When:
-Must be timely executed, or else it could be argued that probable cause ceased to exist

How:
-When executing either a search or an arrest warrant, generally a police officer must first knock and announce his purpose before entering
-Exception: exigent circumstances (i.e reasonable belief of danger to officer)

1. Search Incident to a Lawful Arrest
2. Exigent Circumstances
3a. Stop and Frisk
3b. Stop and Frisk-Automobile
4. Automobile Exception
5. Plain View Doctrin
6. Consent Searches

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest

Reasonable Scope: May search person arrested and the immediate surrounding area ("wingspan") from which a weapon may be concealed or evidence destroyed

-includes the right to search pockets of clothing and to open containers found inside the pocket
-also includes the right to search containers immediately associated with the person (i.e. a purse)
-Must take place contemporaneously with the arrest

For vehicles, the 4A requires the police officer to show:

1) Arrestee is within reaching distance of the passenger compartment at the time of the search, thus poses a threat to the officer's safety OR a need to preserve evidence being tampered with; or
2) That it is reasonable that evidence of the arrest might be found in the vehicle

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both 1) probable cause and 2) exigent circumstances

Test:
-totality of the circumstances

Felony:
If the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him, then they have the right to enter a private building during the pursuit, to search that building for the person or his weapons, and to seize evidence found there

Misdemeanor:
If the police have probable cause to believe that a suspect has committed a misdemeanor, the the police may act without waiting for a warrant if the totality of the circumstances shows an emergency-a need to act before a warrant can be obtained

-Immediate danger of evidence destruction
-Threatened safety of police
-Suspect is likely to flee before warrant can be obtained

Stop:
-A limited and temporary intrusion on an individual's freedom of movement

Standard:
-Justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in illegal activity
-Totality of the circumstances
-More than vague suspicion, but less than probable cause, and need not be based on a police officer's personal knowledge

Frisk:
-A limited search of a person a police officer has lawfully stopped (i.e. a pat down of a person)

Standard:
-Justified on the reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others
-If the officer feels an object that has makes its identify immediate obvious (i.e. a gun), then the officer may seize the evidence

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if:

1) the police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and
2) the search of the passenger compartment is limited to those areas in which a weapon may be placed or hidden

Note:
-police may order occupants out of a vehicle that they have lawfully stopped
-police may only frisk the driver or the passenger if they have reasonable suspicion that the person is carrying a weapon
-must be temporary and last no longer than is necessary to effectuate the purpose of the stop

4A does not require a warrant to search a vehicle if the police have probable cause to believe that it contains contraband or evidence of a criminal activity

Police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, as well as passengers' belongings (so long as they have probable cause)

-Probable cause only extends to containers and compartments that reasonably could hold the evidence the police are searching for
-If the police have probable cause to search only a particular container, they may search only that container, not the entire car
-If police have probable cause to search the trunk, they can search the entire trunk and every container in the trunk, even if locked

Any other evidence observed in plain view may also be seized

Yes! Police may do so, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated.

General Rule:
-Items in public view may be seized without a warrant

When there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not not named in the search warrant, as long as:

1) the officer is lawfully on the premises,
2) the incriminating character of the item is immediately apparent,
3) the officer has lawful access to the item

Note:
-discovery of the item does not need to be inadvertent

Permission must be given voluntarily
-Under totality of the circumstances

Failure by police to inform the person from whom consent is sought that she has the right to withhold consent does not invalidate the consent