Criminal Procedure -4th Amendment

stop and frisk

1) Terry stops: brief detention for the purpose of investigating suspicious conduct 2) Standard? reasonable suspicion, which is less than probable cause 3) Frisk: pat down of the outer clothing for weapons 4) Why frisk? officer safety 5) if PC arises during the stop and frisk, the detention can be an arrest and the officer can then conduct a full body search

plain view exception

1) To constitute a valid plain view seizure, the police officer must be legitimately present at the location where he or she does the viewing of the item seized 2) It must be immediately apparent that the item is contraband or a fruit of a crime

Model Answer for a Search and Seizure Question

1) Was there government conduct? 2) Is there a reasonable expectation of privacy? 3) Did the police have a valid search warrant? 4) If the warrant invalid, does an officer's good faith defense save the defective search warrant? 5) Was this an exception to having a warrant at all?

exceptions to good faith

1) affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it 2) the affidavit is so lacking in particularity that no reasonable person would rely on it 3) police officer or prosecutor lied to or misled the magistrate when seeking the warrant 4) if the magistrate is biased and has wholly abandoned their judicial neutrality

Searches incident to arrest

1) arrest must be lawful 2) arrest and search must be contemporaneous in time and place 3) geographic restriction: can only search areas where person can procure a weapon or destroy evidence 4) Gant's automobile procedure

the frisk

1) if the officer can reasonably believe "by the plain feel" that something is a weapon or contraband, it will be admissible 2) there can be NO manipulation of the material

automatic categories of standing

1) if you own the premises searched, 2) you live on the premises searched, 3) overnight guests 4) own the property being searched

How to make a proper arrest

1) must be based on probable cause 2) arrest warrants are generally not required before arresting someone in a public place 3) a non-emergency arrest of an individual in his home does require an arrest warrant 4) station house detention: police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation

Wiretapping and eavesdropping

1) need a warrant 2) Exceptions: unrealiable ear, uninvited ear: Everyone assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired -no 4th amendment violation 3) a speaker has no fourth amendment right if she makes no attempt to keep the conversation private

Standard for auto stops

1) police may stop a car if they have at least reasonable suspicion that the law has been violated 2) Exception: checkpoint roadblocks -these are OK, as long as they are neutrally applied (seat belt checks for everyone, not at random) 3) Dogs can circle your car and sniff as long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries

Public School Searches

1) public school children engaged in extracurricular activities can be randomly drug tested 2) warrantless searches of public school children's effects such as purses or backpacks is permissible to investigate violations of school rules

Gant's auto procedure

A search of an automobile is legal incident to arrest IF: 1) arrestee is unsecured and still may gain access to the interior of the vehicle (officer safety!) OR 2) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

evanescent evidence

Hot Pursuit and Special Needs searches -schools Evidence that might disappear quickly if the police took the time to get the warrant

Stop and Frisk applied to an auto

If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may 1) conduct a frisk of the suspected person and 2) may search the vehicle, so long as it is limited to the areas in which a weapon may be placed

Private individuals acting at the direction of public police

Privately paid police actions do NOT constitute governmental conduct UNLESS they are deputized with police power Ex.: store security, subdivision police, campus police

hot pursuit

1) If PO are not within 15 minutes behind the fleeing felon, it is NOT a valid hot pursuit 2) if PO are truly in hot pursuit, they can enter anyone's home without a warrant and any evidence they see in plain view will be admissible

automobile exception

1) In order for the police to search anything or anybody without a warrant and fall under the auto exception, they need PC 2) PC gives them the right to search the ENTIRE CAR without a warrant and any packages where the item they had the PC to look for could be 3) PC to justify a warrantless search can arise after the car's been stopped but the PC must arise before anything or anybody is searched

How to make a proper investigatory detention/Terry stop

1) Police have the authority to briefly detain a person even if they lack probable cause to arrest 2)In order to do this, police must have a reasonable suspicion supported by articulable facts of criminal activity 3) whether they have a reasonable suspicion is totality of the circumstances

probable cause standard

A fair probability that contraband or evidence or a crime will be found in the area searched

consent

For consent to be valid, it must be voluntary and intelligent Police saying that they have a warrant negates consent, there can be no valid consent if the police have a warrant

Step four: If the warrant is not valid, does an officer's good faith defense save the defective search warrant? (LEON)

General rule: an officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements There are four exceptions to this

no expectation to the reasonable expectation of privacy

General rule: anything you hold out to the public everyday 1) the sound of your voice 2) style of handwriting 3) paint on the outside of your car 4) account records held by a bank 5) monitoring the location of your car on a PUBLIC STREET or DRIVEWAY -that's it! 6) Anything that can be seen across the open fields 7) anything that can be seen from flying over in the public airspace 8) odors eminating from your luggage or car 9) garbage SET OUT ON THE CURB FOR COLLETION

when "knock and announce" is permitted

PO needs to knock and announce, however not doing so is permitted if exigent circumstances exist: 1) an officer need not "knock and announce" if knocking and announcing would be dangerous, futile or inhibit the investigation 2) biggest fear of inhibiting the investigation: destruction of evidence -say it like this!

third party consent

Rule: where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one persons consents to the search and the other does not consent, then the one who does NOT consent controls

Step two: Reasonable expectation of privacy?

Standing issue; do you have a reasonable expectation of privacy in the locale in which you were searched, or how you were searched?

overnight guests

have standing to object to the legality of the search of the place they are staying

Step Five: Does the officer have an exception to even needing a warrant?

There are certain situations in which a police officer does not need a warrant: 1) Searches incident to arrest, including car searches 2) Automobile exception 3) Plain View 4) Consent 5) Terry stops-and-frisks that bring PC 6) Evanescent Searches

Step three: did the police have a valid search warrant?

Two core requirements for a facially valid search warrant: 1) probable cause 2) particularity

Fourth Amendment Definition

protects citizens from unreasonable searches and seizures

own the property being searched?

if you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched

Public School searches: standard

a school search will be held to be reasonable only if: 1) it offers a moderate chance of finding evidence of wrongdoing 2) the measures adopted to carry out the searches are reasonably related to the objectives of the search 3) the search is not excessively intrusive

information regarding informants

a) if an officer's affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances b) an informant's reliability/credibility and bases of knowledge are all relevant factors in determining this c) a valid warrant can be based in part on an informant's tip even thou that info is anonymous

Step one: Was there government conduct?

a) publicly paid police -on or off duty b) any private individual acting at the direction of the public police

inventory searches

before incarceration of an arrestee, the police may search 1) arrestee's personal belongings and/or 2) the arrestee's entire vehicle

particularity standard

warrant must state with particularity the place to be searched and the thing to be seized

live on the premises searched

whether you have ownership interest or not, standing to object to search -grandkid at grandma's

own the premises searched

you always have standing to object to the search of the place you own