Ch.4: 4th Amendment - Seizures
Deadly Force Rule
If a person has committed a dangerous felony (making them a serious threat to the public) then the police may use deadly force in apprehending them IF they run
Locked Room Rule
If an occupant has no right to enter a room and it is locked by the other occupant or the police have knowledge that the consenting occupant has not right to enter there, then the consenting occupant does NOT have the authority to consent to a search in that room
Government Official Qualified Immunity Rule
If an officer or government official performs a unconstitutional search and/or seizure but it is questionable (court has to debate over constitutionality) then the government actor cannot personally be held liable
Rule of Mail Searches
If mail is being sent to / from US, no warrant required because border search; HOWEVER if mail is sent domestically within US, warrant required unless exigent circumstances Caveat: Dogs may sniff domestic mail w/o a warrant
Rule of RS for Cars after Fruitful Frisks
If officers stop someone and have RS there is a weapon, frisk the person, and find a weapon, they now have RS to search the car for weapons
Undercover Agent Rule
If one invites an undercover agent into the house, any evidence the agent finds IN PLAIN VIEW is not suppressible for lack of consent to enter the dwelling
Rule of Swallowed Drugs
If police are lawfully in the house, then they can prevent ∆ from trying to swallow drugs (destroy evidence) BIG CAVEAT: Police CANNOT force suspects to throw up pills after they swallowed them Policy: Too intrusive b/c if forcing information out of someone's mind (coerced confession) is unconstitutional, then forcing evidence out of another bodily organ is also unconstitutional
Warrants and Individualized Searches Rule
If police have a warrant to search an area, that does NOT automatically give them authority to search every individual person found there, w/o RS
Rule of Sections in Cars
If the police only have PC to suspect evidence is in a specific part of a car, then only that part of the car is searchable
Secure Arrestee Rule
If the police secure the arrestee in their squad car after making the arrest in the home, then the police MAY STILL go back and perform the SITLA Policy: The police should not be required to perform a search in more dangerous circumstance, hence they should be allowed to go ahead and secure the suspect so as to make the search safer to conduct
Rule of Police Misrepresentation and Consent
If the police tell someone that they will obtain a warrant if consent is not given and they DO NOT actually have PC, OR if the police claim to have a warrant but they DO NOT, then there is no valid consent even if the person with authority then gives it
Rule of Protective Sweeps
If there is a REASONABLE SUSPICION that there is someone or thing in the area outside of the arrestee's immediate control that could pose a danger to the police in the home, then the police may conduct a search to ensure their own safety Example: Heard a noise in another room Caveats: 1) Limited to areas where people could be hiding (AKA: Cannot rummage through cabinets or drawers) 2) Cannot last longer than necessary to dispel the reasonable suspicion
Rule of Fleeing and RS
Fleeing from the police provides valid RS
Administrative Inspection Definition
Forced inspections by municipalities for entire area codes
Policies for Statutory Substitution for a Warrant
1) Business owners' expectations of privacy are not a great as that of private home owners 2) Business owners in heavily regulated industries have an even lesser expectation of privacy than other business owners
Routine Border Search Policies
1) Cars entering at the border are subject to search, and there is certainly less of a privacy interest in the fuel tank than the passenger area 2) Certain car parts can be removed, inspected, and replaced without damaging the car, and the infringement of property rights is outweighed by the government's interests in controlling its borders 3) A one to two hour delay associated with a border inspection is not unreasonable
Permissible Primary Purposes for Government Intrusions at Roadblocks and Checkpoints
1) DUI, Driver's license, insurance, registration, illegal aliens 2) Roadblock set up to thwart imminent terrorist attack 3) Roadblock to catch a dangerous a criminal who is likely to flee via a particular route 4) Road block to find missing child 5) Immigration roadblocks within 100 miles of border
Legitimate Government Interests
1) Identification 2) Safety of Law Enforcement 3) Determining What Bail should be Offered (IF ANY) 4) Discovery of Wrongful Convictions
Valid Roadblock / Checkpoint Test
1) Identify the Primary Purpose 2) Is the purpose distinguishable from general interest in crime control (AKA: Must be specific interest)? Possible Terror Exception: General Crime control MAY be a valid interest IF there is an imminent terrorist attack
3 Main Types of Exigent Circumstances
1) Immediate Risk of Death or Serious Injury 2) Danger of Evidence Being Destroyed 3) Hot Pursuit of Dangerous Suspect
Totality of Circumstances Factors for Consent to Searches
1) Knowledge of Right to Refuse 2) Age 3) Intelligence 4) Custody 5) Language Barriers
SITLA Policies
1) Officer Safety 2) Destruction of Evidence
Totality of Circumstances Factors for RS
1) Officer's experience in high crime area 2) Anonymous Tips 3) Reliable Informant Tips 4) Fleeing from Police Example: 3 am; truck full of furniture in high crime neighborhood; probably RS to stop, not to frisk
Limits on FRISK
1) Once police are satisfied that there are no weapons, they MUST STOP 2) Only searching for weapons, not evidence 3) If police are not sure whether it is a weapon or not, he can remove it
Limits of Government Interests for Special Needs Doctrine
1) Primary purpose CANNOT be to gather evidence for criminal prosecution (look at what is done w/ the info [is it given to prosecutors?]) 2) There must be a real danger demonstrated through SPECIFIC EVIDENCE, NOT hypothetical danger Example: Airport searches do not need RS or PC to search because there is a compelling need (terrorist attacks)
Policies for Inventory Searches
1) Property Protection 2) Protecting Police from Theft Claims 3) Police Safety
4 Ways to Lawfully Search Cars
1) SITLA 2) AED 3) Inventory Search 4) Terry Stop (addressed later)
SITLA v. AED
1) SITLA only allows for the search of a passenger compartment, but under AED the police can search the entire car 2) For AED, the person does not have to be in the car, while under SITLA, the person must be in or near the car
Policies for Jail Strip Searches
1) The practice of observing all inmates for identifying marks is essential to preventing gang violence in the jails Note: To limit strip searches to only those who have committed more serious offenses would not be feasible, as those who have committed BOTH SERIOUS AND MINOR have been found to be dangerous in the jail setting 2) The practice of strip searching all inmates is justified, given the HEALTH AND SECURITY RISKS attendant to admitting large numbers of inmates
2 Ways to Violate the Frisk Rule
1) There is RS to stop, BUT NOT to frisk 2) There is RS to frisk, BUT the search goes BEYOND THE SCOPE (unreasonable)
Rule of More Extensive Searches and Protective Sweeps
A more extensive search than a Protective Sweep is permissible only when there is RS based on articulable facts
Search Incident to Lawful Arrest (SITLA)
A search may be performed on a lawfully arrested arrestee and the area in immediate control of the arrestee (within their grab area) AT THE TIME THE ARREST IS MADE BIG NOTE: There is NO requirement for PC or a Reasonable Suspicion in order to perform a SITLA
Seizures and Deadly Force Rule
A seizure has occurred where the suspect is shot and killed
STOP Test
A stop occurs whenever there is either: 1) Physical Restraint (Not free to leave) OR 2) Submission to Show of Authority
Rule of Strip Searches in Jail
A strip search in jail for those who commit minor offenses does not require reasonable suspicion
Suspicionless Checkpoint Rule
A suspicionless roadside checkpoint established for the purpose of deterring general criminal activity is UNLAWFUL under the 4th Amendment
Rule of Thieves Retreating into Houses
A thief retreating into a house does not create a hot pursuit situation because without more details, because he is not a dangerous suspect Note: The gravity of crime and likelihood that suspect is armed should be considered
Rule of Immediate Aid
A warrantless search of a home is permissible where there is an OBJECTIVELY REASONABLE basis for believing someone within the house is in need of immediate aid CAVEAT: The immediate aid rule also applies to animals
Main FRISK Rule
AFTER conducting a valid STOP an officer may conduct a protective FRISK, IF he has a REASONABLE SUSPICION that the suspect is ARMED
Rule of Administrative Searches
Administrative searches are significant intrusions upon the privacy and security interests that the 4th Amendment protects and are thus subject to PC requirements
Special Needs Doctrine
Allows government to search / seize WITHOUT ANY level of individualized suspicion IF they can demonstrate that there is a special need beyond the general interest in law enforcement
Rule of Compliance
An arrest may be made at someone's home without an arrest warrant IF the police ASK the suspect to step outside first and the person complies CAVEAT: The police CANNOT order the person to step outside their home, they can only ASK
Nature of the Crime Limitation for RS
An officer CANNOT assume ∆ is armed and dangerous just because he is engaged in criminal activity; but some crimes by their nature would provide RS to frisk (i.e. robbery—burglary is a closer call.)
Main STOP Rule:
An officer may STOP someone W/O PC for arrest IF he has an ARTICULABLE AND REASONABLE SUSPICION of CRIMINAL ACTIVITY
Rule of Destruction of Evidence
An officer must Reasonably Believe the delay in obtaining a warrant threatened the destruction of evidence, under the SUBJECTIVE CIRCUMSTANCES Caveat: Police must hear or notice something indicating the destruction of evidence
Routine Border Search Test
Analyze intrusiveness to determine whether routine or not
Rule of Authority to Consent
Any person with an APPARENT EQUAL RIGHT to use or occupy the property may give or refuse consent to a search
Test for Exigent Circumstances Source
Before exigent circumstance arose, did police violate the 4th amendment? Yes: Evidence Suppressed No: Evidence Admitted
Reverse Border Search Rule
Border Search principles also apply to people or property leaving the country
Rule of o Nonroutine Border Searches
Border police need SOME level of individualized suspicion for non-routine searches (strip search, ripping out seats of car [destruction of property] - most courts require at least RS)
Terry v. Ohio (1968)
Case that created the Stop and Frisk Rule
Consent to Searches
Consent is NOT an exception for warrantless searches, rather it is the waiver of the 4th Amendment right to refuse consent
Rule of Common Authority and Revocation
Consent is revocable at any time during the search by any person with authority
Rule of Government Special Needs
Government must have a COMPELLING NEED to search/seize without warrant or PC or RS
Rule of Testing Extra Curricular Students
Drug test requirements for extra-curriculars at school without RS or warrant ARE valid Policy: The government interest to protect children is compelling, and the test results were NOT turned over to the police
Rule of Hospital Drug Testing
Drug testing at a hospital MAY NOT be done for the sole purpose of criminal prosecution and evidence gathering Policy: Too much police involvement in drug testing program (police could question patient, results were turned over to police) Note: Testing of pregnant mothers looks like they're doing this for criminal law enforcement purposes rather than to protect the mother and child
Rule of Drug Testing Election Candidates
Drug testing of political candidate without RS or warrant is unconstitutional, because there is NO compelling interest Policy: Cannot point to specific problem, hence it is too hypothetical Note: Rather than "well politicians shouldn't be on drugs" you would have to show that there is an actual problem with high politicians
Rule Secondary Purpose of Roadblocks
Even if the police claim that a legitimate SECONDARY purpose of an intrusive program is to keep impaired motorists off the road and verify licenses and registration, the program is NOT constitutional Policy: It would be easy to institute all manner of illegal searches as long as license verifications were included, just to make the search "legal"
Rule of Information Pertaining to the Sale of Drugs
Info that someone had been selling narcotics does NOT create exigent circumstances
Issue w/ Consent
It pits the suspect's word against the officer's
Totality of Circumstances Rule for Consent to Searches
Knowledge of the right to refuse is merely one factor among a myriad of others as to whether consent was VOLUNTARY Note: Consent CANNOT be the result of either express or implied duress/coercion
Statutory Substitution for a Warrant
Means that the statute provides notice to business owners
Fleeing and Stops Rule
No stop/seizure occurs where the someone is fleeing from police and not caught
Rule of Custody and Objection to Searches
Once ∆ is in custody, he no longer as the right to object to the search of a house Example: Yelling objections from a patrol car does NOT work
Primary Purpose Rule
Only the Primary Purpose may make an intrusion on privacy valid
Rule of Administrative Searches and PC
PC exists IF REASONABLE LEGISLATIVE AND ADMINISTRATIVE STANDARDS for conducting the area inspection are satisfied with respect to a particular dwelling
Rule of Common Authority
Police CANNOT conduct a warrantless search on consent from one occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant Note: warrantless search under these circumstances is not reasonable
Rule of Detention and Waiting for Warrants
Police can detain people for a REASONABLE TIME while waiting on search warrant Example: If police have PC to believe that a suspect has hidden drugs in his house, they may, for a REASONABLE TIME, prohibit him from going into house unaccompanied so that they can prevent him from destroying evidence while they obtain a search warrant
Rule Felon DNA Testing
Police can take and keep DNA from people who are merely arrested for a serious crime (no misdemeanors)
DUI Dog Sniff Rule
Police can use dog-sniffs at DWI checkpoints so long as primary purpose was DWI and dog sniffs do not prolong stop
Rule of Exigent Circumstances
Police may invade the privacy of citizen IF they demonstrate that they had to act immediately because of an emergency, hence there was no time to get a warrant KEY: No time for a warrant
Rule of Vehicle Searches After Arrests
Police may search a vehicle after a recent occupant's arrest only IF: 1) The arrestee is within reaching distance of the passenger compartment AT THE TIME of the search Caveat: Police can search a vehicle after the occupant's recent arrest only when arrestee is unrestrained and within reach of the passenger compartment, and objects within it OR 2) It is reasonable to believe that crime-related evidence is located in the vehicle
Rule of PC from Consenting Parties
Police may use what a consenting person has told them to obtain a warrant
Reasonable Suspicion (RS) Rule
Police must be able to point to SPECIFIC AND ARTICULABLE FACTS which, taken together with RATIONAL INFERENCES from those facts, reasonably warrant that intrusion
Rule of FRISKING
Police must have separate a suspicion that you have a weapon
Rule of Consent and Bailment
Property given to another as a bailment gives inherent authority for rights to the property and allow the police to conduct search Example: You loan car to someone and they are stopped by police, then they may give consent to a search
Anonymous Tips and RS Rule
RS requires anonymous tips to be reliable in assertion of illegality, NOT just a tendency to ID a specific person—must be able to confirm more than just innocent details Example: Anonymous tip that young black man wearing plaid shirt is carrying a gun, not enough. Cops immediately frisked ∆ and found gun; search invalid because no RS.
Rule of Racial Profiling and Border Searches
Race MAY be a factor at the border for conducting searches
Rule of Random Spot Checks
Random vehicle spot checks without PC are unreasonable and violate the 4th Amendment Policy: The privacy interests of travelers outweigh the state interests in discretionary spot checks of automobiles
Rule of Inventory Searches
Reasonable police regulations relating to inventory procedures administered in good faith are sufficient for conducting a valid search KEY: THERE MUST BE A POLICY / PROCEDURE FOR TAKING INVENTORIES Note: This is true even if a court later comes up with its own, different rules ordering different procedure
Same Room Rule
SITLAs CANNOT be applied any room outside of the room the person is arrested in Policy: Allowing warrantless searches of an entire home would encourage the police to make all arrests in suspects' homes since they could then legally undertake a search even where probable cause is lacking
Rule of SITLAs and Cell Phones
SITLAs DO NOT apply to searches of cell phone contents Policy: SITLAs are permitted for the safety of the arresting officer and to prevent destruction of evidence and there is no safety risk posed to an officer by a cell phone beyond a preliminary search to make sure the phone does not house a blade or other small weapon
Rule of Public Schools
School officials do not need PC or a warrant to search or seize students, ONLY RS (K - 12) Policy: The school officials have an important interest in protecting the other students
Rule of Sources of Exigent Circumstances
So long as police don't create exigent circumstances through a violation or threat of violation of 4th amendment, then evidence will NOT be suppressed
Rule of Public Employer Drug Testing
Some employers have a compelling interest to not have workers under the influence on the job (for jobs that protect others or exercise judgment), hence those employers may drug test under the special needs doctrine BIG CAVEAT: Private employers may implement drug testing W/O applying the special needs doctrine
Rule of Vehicle Stops
Stopping a vehicle is a seizure
Rule of Giving Search Limitations
Suspects may place ANY limits on the scope of the search
Rule of DNA Swabs
Taking and analyzing a cheek swab of the arrestee's DNA is a legitimate police-booking procedure that is REASONABLE under the 4th Amendment when there is: 1) Arrest 2) Serious Offense 3) PC, 4) Suspect is Detained in Custody at the Station
Rule of Containers in Automobiles
The 4th Amendment permits warrantless searches of containers found in automobiles IF the police have PC that the container CONTAINS EVIDENCE OF A CRIME Policy: Having 2 separate rules, one for when PC exists as to a car and one for when it exists as to a container in the car, will lead to confusion and possibly more extensive searches of the entire car than police would otherwise undertake
BOP for Unreasonable Jail Procedures
The burden is on the plaintiff to show that there is substantial evidence that demonstrates their policies are unnecessary or unjustified as a solution to jail security
Policy of Protective Sweeps
The concern about officer safety outweighs the subject's privacy interest and justifies a warrantless search
Rule of Consent Ambiguities
The courts' will construe any ambiguities about consent AGAINST THE SUSPECT, not the police
Rule of Refusal
The fact that a person refuses to give consent CANNOT be used to determine PC
Rule of Open Doors
The fact that the door is open doesn't mean that police have right to go into house
Apparent Authority Test
The facts relied upon to determine the person has the authority to consent must be such that REASONABLE PERSON WOULD NOT DEMAND FURTHER INQUIRY Note: Actual ownership interest in the property is not a requisite to give valid consent, only a right to habitation (think landlords)
Testimonial Evidence Rule (5th Amendment)
The fifth amendment privilege against self-incrimination ONLY prevents the admission of testimonial evidence, hence blood test results, photographs, or fingerprints are not testimonial evidence Caveat: Testimonial evidence disguised as physical evidence, such as lie detector test results, would NOT be admissible
Cell Phone Search Rule
The government may NOT conduct a warrantless search of the contents of a cell phone seized incident to an arrest ABSENT exigent circumstances Policy: Cell phones contain numerous intimate details about one's private life that re irrelevant to the arrest
Rule of Routine Border Searches
The government may search people or property entering the United States WITHOUT PC, a warrant, or even RS
Special Needs Balancing Test - Special Needs v. Intrusiveness
The more intrusive a search, the more compelling the special need must be for it to be valid Steps: 1) Identify the Government Interest 2) Identify the Intrusive Program 3) Balance the interest against the intrusiveness of the program (interest vs. expectation of privacy)
Rule of Individualized Suspicions
The more intrusive the search, the more likely one is going to need individualized suspicion
Rule of o Waiting for Drug Dogs
The officers may NOT make a suspect wait for a drug dog to arrive for longer than it would take to perform the search
Rule of Roadblock and Checkpoint Procedures
The police CANNOT be discriminatory AND the searches must be sequential Caveat: Police don't have to stop every car (can stop every other or 5th car)
Rule of Informing Suspects of Right to Refuse
The police DO NOT need to inform people of their right to refuse in order for consent to be valid
Automobile Exception Doctrine (AED)
The police may search a car w/o a warrant IF they have PC to believe there is evidence of a crime in the car Note: One has a lesser expectation of privacy in cars vs. homes
Rule of Adjoining Areas and Protective Sweeps
The police may search areas of the premises immediately adjoining the place of arrest where someone posing a risk to the police could be hiding
Rule of Inventory Searches and Customary Procedures
The policies / procedures do not need to be explicitly written, they can be established through custom
Rule of Inventory Search Pretexts
The pretext for performing an inventory search CANNOT be for finding evidence
Specific Crime Information Rule
The primary purpose may be to obtain information from motorists about a specific crime that was committed in the area that in all likelihood was not committed by the questioned motorists
Rule of Checkpoints and Specific Crime Information
The primary purpose may be to obtain information from motorists about a specific crime that was committed in the area that in all likelihood was not committed by the questioned motorists Policy: Police are not trying to get info about vehicle occupants Caveat: This does not apply to roadblocks / checkpoints where the police set up road block to gather info about crimes in the area generally, hence it MUST concern an actual crime that has been committed
Rule of Consent to Searches
The prosecution must look at the TOTALITY OF THE CIRCUMSTANCES in order to prove that consent to a warrantless search absent probable cause was intelligently and VOLUNTARILY given (BOP is on the State) Note: Consent may be withdrawn at anytime
Rule of Searches and Reasonability of Scope
The scope of the search is only reasonable IF: 1) Moderate Chance of finding evidence of wrongdoing 2) Measures adopted are REASONABLY RELATED to the objective of the search 3) Search is not excessively intrusive in light of age, sex, and nature of the infraction
Rule of Students and Excessive Intrusion
The searches may NOT be excessively intrusive in searching the students
Rule of Reasonable Legislative and Administrative Standards
The standards depend upon the nature of the municipal program being enforced and may include: 1) Passage of Time OR 2) Nature of the Building OR 3) Condition of the Entire Area
Rule of Police Intent for Searches
The subjective intent of the officer is irrelevant, hence as long as a valid exigent circumstance existed (even if the officer was unaware of it) then there is still an exception to the intrusion of privacy
Rule of Inmates
There are NO REOP for inmates, hence pretty much any search is lawful
Rule of Homicides and Immediate Aid
There is NO AUTOMATIC right to search a house after a homicide has already been committed
Rule of Breathalyzer Tests After Crimes
There is a SPECIAL NEED for officers to perform breathalyzer tests after a crime is committed w/o RS or a warrant b/c the evidence MAY be gone forever after a certain amount of time and the test is MINIMALLY INTRUSIVE
Reliable Informant and RS Rule
Tips from reliable informants provide valid RS
Rule of Home Arrests
To arrest someone in their own home, the police need an ARREST WARRANT
3rd Party Property Arrest Rule
To arrest someone who is located on private property of a 3rd party, the police must obtain a SEARCH WARRANT Caveat: Some businesses that are generally open to the public, DO NOT require the police to acquire a search warrant in order to make an arrest there
Policy for the Rule of Motorhome Searches
To avoid drawing arbitrary distinctions among different types of moveable vehicles, it is preferable to treat motor homes as vehicles for Fourth Amendment purposes
Rule of Warrantless Reasonableness
To be reasonable, the warrantless search must further a LEGITIMATE GOVERNMENT INTEREST that outweighs the search's intrusion upon the searched individual's privacy
Rule of Seizures of People v. Property
UNLESS law enforcement makes it perfectly clear when and where the suspect can get his belongings back, seizure of the belongings is indistinguishable from seizure of the person himself Time Limit Rule: The seizure must be brief, even though there is no specific time limit (90 Minutes is too Long!)
Rule of Motorhome Searches
Under the Fourth Amendment, a vehicle that can be READILY MOVED and that has a reduced REOP due to its use as a licensed motor vehicle may be searched without a warrant provided PC exists AKA: If the vehicle home was movable at some point, then the vehicle will be treated as a car and not a home
Locked v. Unlocked Items Rule
Unlocked items (even if zipped) police can search; lock items, police cannot search. Police CANNOT search trunks
Example of Retreating Thief into a House
Warrantless entry into house was improper because even though murder was involved, suspect wasn't the murderer, only getaway driver and police had already recovered murder weapon; police knew that 2 cooperating witnesses were with suspect and not in danger; house was surrounded
Closely Regulated Business Searches Rule
Warrantless searches of businesses operating in heavily regulated industries are reasonable under the following 3 CONDITIONS: 1) Substantial Government Interest 2) Necessity of Inspections to Serve that Interest 3) The Authorizing Statute SUBSTITUTES FOR A WARRANT
Subjective Pretext and Stop Rule
When PC of illegal conduct exists, an officer's true motive for searching or detaining a person does NOT negate the constitutionality of the search or seizure Note: This means that racial profiling is not a basis for having evidence thrown out, so long as there stop was lawful, hence the suspect's recourse is civil liability of the officer, not the exclusion of evidence in criminal proceedings
Rule of Terry Stops and Vehicles
When police make terry stop of vehicle and have RS that weapon is in car, they can search the car for weapons IF: 1) Limited to places where weapon might be AND 2) ONLY within passenger compartment, not trunk Note: Must still be able to point to facts for RS
Rule of Personal Belongings and Seizures
When police seize personal property from a suspect's custody, the limitations applicable to investigative detentions of the person himself should define the permissible scope of an investigative detention of the person's property on less than PC
• Obvious Connection Rule
When there is an obvious connection between a legitimate government interest and the means employed to effect that interest, then there is NO constitutional violation
Inventory of Containers Rule
Whether or not the police can open containers in cars for making inventories, depends on whether the particular police department policies allow it
Submission to Show of Authority
Would a reasonable person, under the circumstances, have believed they were not free to leave Factors: 1) Multiple Officers 2) Display of Weapon 3) Physical touching 4) Use of Language or Tone (indicating that compliance with officer's request might be compelled)