civil liberties EXAM 2

Three general requirements must be met for a valid warrantless vehicle search:

(1) the exception must only apply to automobiles; (2) with one exception, such a search must be premised on probable cause; and (3) it must be impractical to obtain a warrant (i.e., the vehicle stop must be such that it is impractical, burdensome, or risky to take time to obtain a warrant).

4 issues to the service of search warrants

(1) time restrictions, both for when the warrant can be served and for how long the police can look for evidence; (2) the scope and manner of the search; (3) the procedure after the service of the search warrant; and ( 4) the presence of the media during the service of a search warrant

seven factors that may permit warrantless entry:

-The offense is serious. -The suspect is believed to be armed. -The police have a high degree of probable cause for arrest. -There is an especially strong reason to believe the suspect is on the premises. -Escape is likely. -The entry can be made peaceably. -The entry can be made during the day.

Warrantless action based on a HOT PURSUIT exigency is constitutional only if the police have probable cause to believe any of the following:

-The person they are pursuing has committed a serious offense. -The person will be found on the premises the police seek to enter. -The suspect will escape or harm someone or evidence will be lost or destroyed. -The pursuit originates from a lawful vantage point. -The scope and timing of the search are reasonable.

four important issues to be considered with regard to the service of arrest warrants

-when the police are required to "knock and announce" their presence -whether property damage is acceptable when deadly force can be used -the consequences of arresting the wrong person.

plain view seizure is authorized when

1) the police are lawfully in the area where the evidence is located; (2) the items are immediately apparent as subject to seizure; and (3) the discovery of the evidence is inadvertent. (decided in Coolidge)

evanescent evidence are permissible only when

1) there is no time to obtain a warrant; (2) there is a "clear indication" that the search will result in obtaining the evidence sought; and (3) the search is conducted in a "reasonable manner." This three-prong approach remains more or less intact today. The Breithaupt decision

Probable cause is always required in the following scenarios:

1. arrests with warrants; 2. arrests without warrants; 3. searches and seizures of property with warrants; and 4.searches and seizures of property without warrants.

Two important factors of a Search

1. whether the presumed search is a product of government action 2. whether the intrusion violates a person's reasonable expectation of privacy

Protective sweep

A cursory visual inspection of those places in which a person might be hiding

Search incident to arrest

An exception to the Fourth Amendment's warrant requirement that allows officers to search a suspect following his or her arrest. -arrest itself must be lawful Chimel v. California (395 U.S. 752 [1969])

Automobile exception

An exception to the Fourth Amendment's warrant requirement that permits police to search a vehicle without a warrant, so long as they have probable cause to do so

" plain view " doctrine

An exception to the Fourth Amendment's warrant requirement that permits police to seize certain items in plain view -Plain Touch, Feel, and Smell Coolidge v. New Hampshire

Hot Pursuit

An exigent circumstance that permits dispensing with the Fourth Amendment's warrant requirement. Hot pursuit applies only when the police have probable cause to believe (1) that the person they are pursuing has committed a serious offense, (2) that the person will be found on the premises the police seek to enter, and (3) that the suspect will escape or harm someone or that evidence will be lost or destroyed. Also, the pursuit must originate from a lawful vantage point and the scope and timing of the search must be reasonable Minnesota v. Olson (495 U.S. 91 [1990])

House

Any structure that a person uses as a residence (and frequently a business) on either temporary or long-term basis. Example) A hotel room or its equivalent is considered a "house," as it is a temporary residence that enjoys Fourth Amendment protection. Also, a garage or other structure not connected to a house can also fall within the meaning of a "house" under the Fourth Amendment

Riley v. California

As per the decision in Riley v. California, an arresting officer may not search an individual's cell phone without a search warrant. The arresting officer in the scenario described follows the proper protocol and obtains a warrant to search the phone.

Protect America Act

Controversial legislation enacted in August 2007, which revised the Foreign Intelligence Surveillance Act to permit warrantless interceptions of certain communications. It expired in February 2007.

evanescent evidence

Evidence that is likely to disappear. An example is alcohol in a person's bloodstream This may include certain types of evidence inside a person, as well as a house, a paper, or an effect. Breithaupt v. Abram (352 U.S. 432 [1957])

Safe Streets Act

Federal legislation enacted in 1968 that set forth detailed guidelines on how authorities could intercept wire, oral, or electronic communications.

Title III of the Omnibus Crime Control and Safe Streets Act

Federal legislation enacted in 1968 that set forth detailed guidelines on how authorities could intercept wire, oral, or electronic communications.

Foreign Intelligence Surveillance Act

Federal legislation enacted in 1978 that regulates electronic surveillance as it pertains to foreign intelligence gathering.

Electronic Communications Privacy Act

Federal legislation passed in 1986 that amended Title III of the Omnibus Crime Control and Safe Streets Act to include "electronic communications."

Person

In Fourth Amendment terms, the individual as a whole, both interanally and externally. The term "person" includes words communicated that art not used for identification purposes. example) An arrest, for example, is a seizure of a person. If a police officer pulls up the sleeves of a suspected drug user to look for needle tracks, this is a search of a person within the meaning of the Fourth Amendment.

Preston v. United States (1964)

In Preston v. United States, it was determined that for a search after arrest to be constitutional, it must have taken place soon after the arrest. The decision noted that "justifications are absent where a search is remote in time or place from the arrest." In the scenario described, Devon is already in custody and his car has been impounded, meaning any immediate danger to officers is absent.

Reasonable Suspicion

Justification that falls below probable cause but above a hunch. Reasonable suspicion is court -created justification; it is not mentioned in the Fourth Amendment. Reasonable suspicion is necessary for police to engage in stop-and-frisk activities. Terry v. Ohio (392 U.S. 1 [1968])

Exceptions to the Warrant Requirement

Law enforcement actions that do not require a warrant. Examples include 1. searches incident to arrest, 2. searches based on exigent circumstances, 3. automobile searches, 4. plain-view searches, 5. arrests based on exigent circumstances, 6. and arrests in public places

Probable Cause

More than bare suspicion; exists when "the facts and circumstances within [the officers'] knowledge and of which they [have] reasonable trustworthy information [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or believing that the [suspect] had committed or was committing an offense" Beck v. Ohio (379 U.S. 89 [1964])

lawful access

One of the requirements for a proper plain view seizure. The police must have lawful access to the item seized

immediately apparent

One of the requirements for a proper plain view seizure. The police must have probable cause that the item is subject to seizure Arizona v. Hicks

neutral and detached magistrate

One of the three elements of a valid warrant, any judge who does not have a conflict of interest or pecuniary interest in the outcome of a particular case or decision

armspan rule

Part of the search incident to arrest exception to the Fourth Amendment's warrant requirement that allows officers to search not only the suspect incident to arrest, but also his or her "grabbing area."

Stop

Sometimes called an "investigative stop" or an "investigative detention," a brief nonconsensual encounter between a law enforcement officer and a citizen that does not rise to the level of an arrest; the detention of a person by a law enforcement officer for the purpose of investigation.

particularity

The Fourth Amendment requirement that an arrest warrant name the person to be arrested (or provide a sufficiently detailed description) and that a search warrant describe the place to be searched and the things to be seized ----- Two Particularity requirement in a SEARCH Warrant: First, the warrant must specify the place to be searched. Next, the warrant must specify the items to be seized. ----- Two particularity requirements for ARREST WARRANTS: First, if the suspect's name is known, then simply supplying his or her name is enough to meet the particularity requirement. In some situations, however, the suspect's name is not known. Second, a specific description of the suspect is sufficient and a "John Doe" warrant will be issued.

Warrant Clause

The Second part of the Fourth Amendment: " ... 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. "

arrest

The act of taking an individual into custody for the purpose of charging the person with a criminal offense (or, in the case of a juvenile, a delinquent act). (most intrusive type of seizure) require probable cause

Racial profiling

The practice of stopping people based on race rather than legitimate criteria.

nonstop

a consensual encounter nonstop occurs when a reasonable person would believe that he or she is free to leave. A nonstop requires no justification at all because it is not considered a seizure within the meaning of the Fourth Amendment.

Search

a government action that infringes on one's reasonable expectation of privacy

disparate impact

a method of acting that treats one group in a markedly different fashion than another.

Actual Possession

a piece of property is in a person's actual possession if he or she is physically holding or grasping the property.

Foreign Intelligence Surveillance Court

a secretive court created by the foreign intelligence surveillance act. the court reviews applications for warrants related to surveillance in national security investigations.

seizure of property

a seizure of property occurs when " there is some meaningful interference with an individual's possessory interest in that property "

administrative justification

a standard used to support certain regulatory and special needs searches. Created by the Supreme Court, it adopts a balancing approach, weighing the privacy interests of individuals with the interests of society in preserving public safety.

government action

action on the part of paid government officials, usually police officers. Government action is one of two requirements (the other being infringement on one's reasonable expectation of privacy) that must be in place for a Fourth Amendment search to occur.

Justification

also know as cause, _______ is necessary for the police to engage in actions that trigger the fourth amendment. Examples of _________ include probable cause and reasonable suspicion.

reasonable expectation of privacy

an expectation of privacy that society (through the eyes of a judge) is prepared to accept as reasonable. For a search to occur, a reasonable expectation of privacy must be infringed upon by a government actor.

search warrant

an order issued by a judge directing a law enforcement officer to search a particular location for evidence connected with a specific criminal offense.

arrest warrant

an order, issued by a judge, directing officers to arrest a particular individual identified as one who has committed a specific criminal offense

Open Field

any unoccupied or undeveloped real property falling outside the curtilage of a home

Exigent Circumstances

emergency circumstances, including hot pursuit, the possibility of escape, or evanescent evidence. When exigent circumstances are present, the police do not need to abide by the Fourth Amendment's warrant requirement.

enhancement devices

flashlights, drug dogs, satellite photography, thermal imagery, and so on

Burdeau v. McDowell (256 U.S. 465 [1921])

he Supreme Court first recognized that the Fourth Amendment does not apply to private individuals. In that case, some private individuals illegally entered McDowell's business office and seized records that contained incriminating evidence against him. The records were later turned over to the Attorney General of the United States, who planned to use them against McDowell in court. The Supreme Court ruled that the records were admissible, and stated that the Fourth Amendment's "origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies" (Id. at 475).

Paper and effects

nearly all personal items. Business records, letters, diaries, memos, and countless other forms of tangible evidence can be defined as papers. Effects is the catch-all category. Anything that is not a person, house, or paper is probably an effect. Effects can include cars, luggage, clothing, weapons, contraband, and the fruits of criminal activity.

Seizure of a person

occurs when a police officer - by means of physical force or show of authority - intentionally restrains an individual's liberty in such a manner that a reasonable person would believe that he or she is not free to leave -an arrest -physically restrained on street -pulled over by police

Seizure

one of two government actions (the other being searches) restricted by the Fourth Amendment. Seizures can be of persons or property. -property can be seized. EXAMPLE) if the police successfully serve a search warrant to look for illegal weapons at 345 Oak Street, the weapons they find will be seized -People can be seized. EXAMPLE) An arrest

The Fourth Amendment protects :

persons, houses, papers, and effects from unreasonable searches and seizures

constructive property

possession of property without physical contact. example) a bag that is next to a person on the ground but not in his or her hands.

Fourth Amendment two clauses

reasonableness clause and warrant clause

lawful vantage points

sidewalks, streets, and, of course, public airways. The police can take up positions anywhere outside the home or the curtilage of the home and still be in a lawful vantage point.

Curtilage

the " area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life " ( Oliver v. United States, 466 U.S. 170 [1984], p.255)

United States v. Jacobsen(466 U.S. 109 [1984])

the Supreme Court modified its Walter decision and ruled that the subsequent government search must be substantially more intrusive in order for the Fourth Amendment to be triggered. In that case, Federal Express employees opened a damaged package and found several smaller packages containing a suspicious white powder.

Reasonableness clause

the first part of the Fourth Amendment: " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..."