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)