I. C. Search and seizure

d. Third-party premises

A search warrant may be issued to search the premises of a person who is not suspected of a crime. Z

b. Particularity

A search warrant must describe with particularity the place to be searched and the objects to be seized. United States v. Grubbs, 547 U.S. 90 (2006). Warrants that, in addition to describing specific documents to be seized, also refer to "other fruits, instrumentalities and evidence of the crime at this [time] unknown" are not converted into illegal general warrants by the inclusion of such language. The reference to a "crime" has been interpreted as being limited to a particular crime (e.g., false pretenses), rather than any crime. Andresen v. Maryland, 427 U.S. 463 (1976). A warrant need not specify the manner of its execution.

Warrant requirement

A warrant is required for a search.

"Open fields" doctrine

Private property that lies outside the curtilage of a home, such as a farmer's field, is not protected because the owner does not have a reasonable expectation of privacy.

Exceptions to the search warrant requirement

Search incident to a lawful arrest exigent circumstances stop and frisk Automobile exception Consent

Automobile

officer must have an articulable, reasonable suspicion of a violation of the law to stop a car. No reasonable suspicion needed if the stop is a "checkpoint"

a. Locations searched

1) Home 2) Motel room 3) Business premises 4) Prison 5) Trespass

c. Stop and frisk

1) Stop—limited seizure/detention A "stop" (also known as a "Terry stop") is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest. Merely approaching a person, but not restricting the person's movement in any way, does not constitute a detention. A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). Whether reasonable suspicion exists is based on the totality of the circumstances. It requires more than a vague suspicion, but less than probable cause, and it need not be based on a police officer's personal knowledge. Example: Police were justified in stopping a suspect who (i) was standing on a street corner in a high-crime area and (ii) fled upon noticing the police, even though neither factor alone would constitute reasonable suspicion to justify a stop. Illinois v. Wardlow, 528 U.S. 119 (2000). Reasonable suspicion can be based on a flyer, a police bulletin, or an informant's tip, but only if the tip is accompanied by sufficient indicia of reliability. United States v. Hensley, 469 U.S. 221, 233-34 (1985). A police officer's reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014). In addition, a police officer's reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014). 2) Frisk—limited search An officer who does not have probable cause to arrest may make a limited search of the person, such as a pat-down of the outer clothing, if he has reasonable suspicion that the suspect was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others. Under the "plain feel" exception, if an officer conducting a valid frisk feels an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then the officer may seize the evidence. Police may also briefly seize items if the officers have a reasonable suspicion that the item is or contains contraband. 3) Terry stop of a car Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if: i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and ii) The search of the passenger compartment is "limited to those areas in which a weapon may be placed or hidden." Maryland v. Buie, 494 U.S. 325, 332 (1990); Michigan v. Long, 463 U.S. 1032, 1048-50 (1983). Police may order occupants out of a vehicle that they have lawfully stopped. Maryland v. Wilson, 519 U.S. 408 (1997). When police lawfully detain a driver or a passenger after a traffic stop, they may frisk the person if there is reasonable suspicion that the individual has a weapeon. Arizona v. Johnson, 555 U.S. 323 (2009). 4) Limits on time, place, and investigative method A Terry stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short time. Police may stop the person, question him for a limited period of time, and frisk him for weapons only, not evidence. Police also can require that the detained person identify himself. Failure to comply with this request can result in the arrest of the detained person. After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff violates the Fourth Amendment's protection against unreasonable seizures. Rodriguez v. United States, 575 U.S. ____, 135 S. Ct. 1609 (2015). When police hold a suspect beyond the amount of time necessary to effectuate the purpose of a Terry stop, the seizure becomes an arrest and must be supported by probable cause. 5) Development of probable cause If the officer conducting the stop develops probable cause, the officer may then make an arrest and conduct a full search incident to that arrest. If the stop involves a vehicle, the officer may search the passenger compartment and all containers therein, whether open or closed, if the arrestee is within reaching distance of the passenger compartment of the vehicle or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. See §I.C.4.a.4), Vehicle search incident to arrest, supra, discussing the Gant rule.

4) Field test of substance

A field test performed on a substance to determine if the substance is contraband is not a search for Fourth Amendment purposes.

3) Abandoned property

Abandoned property is not protected by the Fourth Amendment. Example: There is no reasonable expectation of privacy in garbage set curbside for pickup. California v. Greenwood, 486 U.S. 35 (1988).

g. Administrative searches

Administrative search warrants are generally required for nonconsensual fire, health, or safety inspections of residential or private commercial property. 1) Probable cause The probable cause requirement for administrative searches is less stringent than that for a criminal investigation. Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant. Camara v. Mun. Court of San Francisco, 387 U.S. 523, 533 (1967). 2) Use of administrative searches The government may not use administrative searches to investigate criminal activity. However, discovery of evidence during the search does not invalidate the search. The following administrative-type searches may be validly made without a warrant: i) Searches of people entering an airplane boarding area, as long as the passenger can prevent the search by not boarding the plane; ii) Searches of businesses in highly regulated industries such as liquor stores, gun shops, strip-mining operations, and automobile junkyards, because of urgent public interest and under the theory that the business impliedly consented to warrantless searches by entering into a highly regulated industry; iii) Oral statements seized by wiretaps, when matters of national security are at issue; iv) Searches of students by public school officials, so long as they are based on reasonable grounds (this standard is lower than probable cause and calls for only a "moderate chance" of finding the expected evidence, rather than a "fair probability" or "substantial chance"), and the measures adopted for the search are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. v) Special needs searches, such as drug testing for railroad employees involved in an accident or student athletes during the athletic season. To be a special need, the state interest must be a real, current, and vital problem that can be effectively addressed through the proposed search. Even if the need exists, it must be balanced against the privacy interest at stake and the character of the intrusion. vi) Inventory searches of items in official custody, such as impounded vehicles. After lawfully taking custody of property, police may conduct a warrantless search of other property to protect the owner's property while in custody, to protect police from claims of theft, and to protect officers from danger. Inventory searches must be performed according to standardized criteria and procedures. Subjective intent of the officer is irrelevant; vii) Routine international border searches of border crossers and their belongings within the United States, including (i) stops, but not searches, by roving patrols who reasonably suspect that undocumented immigrants may be in an automobile, (ii) opening of international mail if authorities have reasonable cause to suspect contraband in the mail, and (iii) subsequent reopening of mail after the item had been resealed and delivered to the recipient; viii) Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile's inherent mobility (e.g., to get drunk drivers off the road); ix) Factory searches of the entire work force to determine citizenship of workers; x) Searches of government employees' electronically recorded documents and conduct, file cabinets, and desks if they are justified by a reasonable suspicion of work-related misconduct or a non-investigatory, work-related need; xi) Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach; xii) Searches of parolees and their homes, even with no reasonable suspicion, when a parolee agrees to submit to searches by a parole officer or police officer at any time as a condition of his parole. The rationale being that because there is a greater need to search parolees since they are less likely to be law-abiding citizens, a parolee has a lower expectation of privacy; xiii) Seizure of contaminated or spoiled food; and xiv) Searches for the cause of a fire that occurs within a reasonable time after the fire is extinguished, but excluding searches for other evidence unrelated to the cause that would establish that the fire was attributable to arson. Michigan v. Clifford, 464 U.S. 287 (1984) (search of home); Michigan v. Tyler, 436 U.S. 499 (1978) (search of business (furniture store)).

f. Consent searches

Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search. 1) Voluntary For permission to constitute consent, the permission must be given voluntarily. Permission given under threats of harm or compulsion does not constitute consent. In determining whether a person's response constitutes consent, courts evaluate the totality of the circumstances in which the response is made. a) False assertion of authority Permission given in acquiescence to lawful authority (e.g., a warrant) is not voluntary. Consequently, if the officer conducting the search erroneously states that he has a warrant, then permission given in reliance on that statement does not constitute consent. b) Knowledge of the right to withhold consent The 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. 2) Third-party consent When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue. a) Property of a third party Generally, a third party has the authority to consent to a search of property that she owns or occupies. As such, the defendant cannot suppress evidence seized during such a search on the grounds that he (the defendant) did not consent to the search. b) Property of the defendant Generally, a third party does not have the authority to consent to a search of property owned or occupied by the defendant. The defendant can suppress evidence seized during such a search unless (i) an agency relationship exists between the third party and the defendant that gives to the third party the right to consent on behalf of the defendant, or (ii)the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched (e.g., a shared duffle bag). c) Jointly controlled property When the property to be searched is under the joint control of the defendant and a third party (e.g., co-tenants of an apartment, a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is present at the time of the search. i) Defendant not present If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent. The third party has actual authority when she has joint access or control for most purposes. In addition, the third party's consent may be valid even though she lacks actual authority if the police reasonably believe that she has such authority. ii) Defendant present When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search. When the defendant is not present, however, a third party may consent to a search even if the defendant previously was present and objected to a search at that time. iii) Ownership versus current control In some instances, ownership of the premises is not sufficient to confer authority to consent to a search. For example, a landlord may not consent to a search of the tenant's premises. Similarly, a hotel clerk cannot consent to the search of a guest's room. iv) Parental consent When a child lives with a parent, the parent has the authority to consent to a search of a child's room even if the child is an adult. However, a parent may lack authority to consent to the search of a locked container inside the child's room, depending on the age of the child. 3) Scope of consent Although a search is limited to the area to which the consent applies, the search may extend to areas that a reasonable person would believe it extends. For example, consent by a driver to search his car for drugs extends to a closed container within the car that could contain drugs. Florida v. Jimento, 500 U.S. 248, 252 (1991). 4) Burden of proof The prosecution must prove that the permission was freely given; the defendant is not required to show that the permission was coerced.

1) Home

Fourth Amendment protects against an unreasonable governmental search of a "house." This protection extends to persons who have the right to immediate possession of a dwelling, such as the renter of an apartment. a) Curtilage b) Open fields c) Overnight guest in a home

a) Curtilage

In addition to the home itself, an area immediately surrounding the home known as the "curtilage" may be protected. In determining whether the area is protected, the following four-factor test applies: i) The proximity of the area to the home; ii) Whether the area is included within an enclosure surrounding the home; iii) The nature of the uses to which the area is put; and iv) The steps taken by the resident to protect the area from observation by passersby.

3) Business premises

In general, business premises are protected by the Fourth Amendment. However, such premises may be subjected to administrative searches.

4. Exceptions to the Warrant Requirement

a. Search incident to a lawful arrest b. Exigent circumstances c. Stop and frisk d. Automobile exception e. "Plain-view" doctrine f. Consent searches g. Administrative searches h. Wiretapping

REP when there is a smell emanating from luggage?

A person does not have a reasonable expectation of privacy with regard to a smell emanating from his luggage, at least when the smell arises from an illegal substance

4) Prison

A prison inmate has no reasonable expectation of privacy in his cell. The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline. Unlike a convict, a pretrial detainee may have a limited expectation of privacy in his cell. However, a detainee's cell may be subject to a routine search, and the detainee's person may be subject to a strip search or a full-body search after a contact visit with someone from the outside. Jail administrators may also require all arrestees committed to the general population of a jail to undergo no-touch visual strip searches, even if the arrest was for a minor offense and even in the absence of reasonable suspicion that the arrestee possesses a concealed weapon or other contraband.

When does a search occur?

A search occurs when governmental conduct violates a reasonable expectation of privacy. A search also may occur when the government physically intrudes upon private property for the purpose of obtaining information. E.g.,using a drug-sniffing dog on a homeowner's porch for the purpose of investigating the contents of the home constituted a search. E.g.,placement of GPS device on defendant's vehicle for the purpose of monitoring the vehicle's movements constituted a search

1) Fly-over

An inspection conducted from the air, whether by an airplane or a helicopter, does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment.

Abandoned property

No reasonable expectation of privacy in garbage set curbside for pickup.

REP in prison?

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

What types of searches are subject to the 4th amendment?

Only unreasonable searches and seizures are subject to the Fourth Amendment.

2. Defining "Search": The Violation of a Reasonable Expectation of Privacy

Only unreasonable searches and seizures are subject to the Fourth Amendment. A search occurs when governmental conduct violates a reasonable expectation of privacy. A search also may occur when the government physically intrudes upon private property for the purpose of obtaining information. (using a drug-sniffing dog on a homeowner's porch for the purpose of investigating the contents of the home constituted a search); (placement of GPS device on defendant's vehicle for the purpose of monitoring the vehicle's movements constituted a search). a. Locations searched b. Objects sought c. Persons and their attributes d. Methods of search

What locations are constitutionally protected from an unreasonable search?

Places where a person has a reasonable expectation of privacy. REP- home and curtilage, motel rooms, business premises. Using a drug-sniff dog is a search if it physically intrudes onto constitutionally protected property. REP for invasive searches of luggage but not for a canine sniff.

d. Automobile exception

The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so. The search may also extend to passengers' belongings, as well as to mobile homes. Any other evidence observed in plain view may also be seized. 1) Pretextual stop Police may use a pretextual stop to investigate whether a law has been violated, 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. Whren v. United States, 517 U.S. 806 (1996) (seizure of illegal drugs constitutional even though police stopped a car for a traffic violation as a pretext to investigate a hunch that the occupants possessed drugs). 2) Containers within a car Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence. However, if the police have probable cause to search only containers, they may search only that container, but not the entire car. Example: A driver left a residence holding a closed paper bag, which officers had probable cause to believe contained narcotics, based on an informant's tip. The bag was placed in the trunk, and the driver drove away. Police were authorized to stop the vehicle, open the trunk, and inspect the bag. However, the search was limited to the bag only. If they did not find the bag, they could only open and search containers big enough to store the bag. 3) Trunk If police have probable cause to search the trunk, not just a container placed in the trunk, then they can search the entire trunk and every container in the trunk, even if locked.

1) Papers and effects

The Fourth Amendment, by its terms, protects "papers and effects." For example, a person retains a reasonable expectation that items placed within his luggage will be free from a purposeful, exploratory physical manipulation of the luggage. Bond v. United States, 529 U.S. 334 (2000). Compare smell emanating from object. A person does not have a reasonable expectation of privacy with regard to a smell emanating from his luggage, at least when the smell arises from an illegal substance. United States v. Place, 462 U.S. 696 (1983). When papers and effects are transferred to a third party, such as checks and deposit slips given by a customer to a bank, a person no longer has a reasonable expectation of privacy in these items. Similarly, financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy.

1) Physical characteristics

There is no expectation of privacy in one's physical characteristics; therefore, a demand for a handwriting or voice sample is not a search. Furthermore, DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under theFourth Amendment.

h. Wiretapping

To obtain a warrant authorizing a wiretap, officers must satisfy the below requirements. The warrant must: i) Be limited to a short period of time; ii) Demonstrate probable cause that a specific crime has been or is about to be committed; iii) Name the person or persons to be wiretapped; iv) Describe with particularity the conversations that can be overheard; and v) Include provisions for the termination of the wiretap. Upon termination of the wiretap, the conversations that have been intercepted must be shown to the court. Note that a person assumes the unreliability of those to whom she speaks and has no Fourth Amendment claim if she finds out later that the listener was wired or recording the conversation. United States v. White, 401 U.S. 745 (1971). Furthermore, a speaker who makes no attempt to keep his conversation private has no Fourth Amendment claim. Katz v. United States, 389 U.S. 347 (1967). In addition, a wiretap related to domestic security surveillance requires that a neutral and detached magistrate—not the president—make the determination that a wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime Control and Safe Streets Act. However, there is no requirement for prior authorization when a covert entry is planned to install the electronic equipment, or when a pen register is used.

c) Overnight guest in a home

While an overnight guest in a home does not have an ownership interest in the home, such a guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter.

b. Exigent circumstances

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances. In determining the existence of exigent circumstances, courts use the "totality of circumstances" test. As a corollary to this doctrine, police may also secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence. Illinois v. McArthur, 531 U.S. 326 (2001). The exigent-circumstances rule does not apply when the police create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849 (2011). 1) Hot pursuit 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 while they are present on the premises, and to seize evidence found there, even though the material found is "mere" evidence and neither fruits nor instrumentalities of a crime. No such exigency exists in pursuing someone suspected of a nonjailable traffic offense; the hot-pursuit exception is inapplicable in that instance. Welsh v. Wisconsin, 466 U.S. 740 (1984). 2) Emergency situations A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction or the threatened safety of the officer or the public, or when a suspect is likely to flee before a warrant can be obtained. Whether a person is in need of aid is judged on the basis of a police officer's objective reasonable belief that the person needs aid. Aid includes emergency assistance to an injured occupant as well as protection of an occupant from imminent injury. Neither the officer's subjective motive for searching without a warrant nor the seriousness of the crime the officer was originally investigating are relevant in making this determination. Brigham City v. Stuart, 547 U.S. 398 (2006). The Supreme Court has ruled that the involuntary, warrantless blood test of a drunken-driving suspect was appropriate when police could reasonably have believed that the delay necessary to obtain a search warrant would likely result in disappearance of the blood-alcohol content evidence, and the test was administered according to accepted medical practices. Schmerber v. California, 384 U.S. 757 (1966). However, the reasonableness of a warrantless blood test is determined case by case, based on the totality of the circumstances. The Fourth Amendment mandates that police officers obtain a warrant before a blood sample can be drawn, if they can reasonably do so without significantly undermining the efficacy of the search.

Effect of trespass on a search

Trespass by govt agent may make the search unreasonable, however, it does not automatically make the search illegal.

5) Trespass

While the fact that a governmental agent is on property without permission may make a warrantless search unreasonable (e.g., a search of a home), the fact that a governmental agent is illegally on property does not automatically make the search illegal (United States v. Oliver, supra), nor does the fact that a governmental agent is legally in a public place make the search legal.

e. Execution of warrant

1) By whom A warrant cannot be executed by a private citizen. Generally, only a police officer may execute a warrant, but administrative warrants may be executed by the appropriate governmental official (e.g., fire inspector). 2) Timing A warrant that is not timely executed (i.e., an unreasonable delay occurs) may be subject to challenge on the grounds that probable cause ceased to exist. 3) Manner of execution—knock and announce Most states and the federal government mandate that a police officer, when executing either a search or an arrest warrant, must generally announce his purpose before entering. The knock-and-announce rule gives individuals the opportunity to comply with the law, to avoid the destruction of property occasioned by a forcible entry, and to collect themselves with dignity before answering the door. The rule also serves to protect officers and the inhabitants of the building from physical harm, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. A state may permit an exception to the rule if the entry is made under exigent circumstances, such as when there is a reasonable belief of danger to the officer or destruction of evidence. Ker v. California, 374 U.S. 23, 34 (1963). Note, however, that the interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery. Thus, violation of the "knock and announce" rule does not trigger the exclusionary rule (see § I.C.6., infra) with respect to evidence discovered as a result of a search conducted in violation of the "knock and announce" rule. Hudson v. Michigan, 547 U.S. 586 (2006). 4) Seizure of evidence not specified A search warrant confers authority to search only the places and persons named in it. Regardless, any evidence of a crime, instrumentalities or fruits of a crime, or contraband found in plain view while properly executing the warrant, whether or not specified in the warrant, may be seized (see §I.C.4.e., "Plain view" doctrine, infra). 5) Treatment of persons not specified in the warrant Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification. Ybarra v. Illinois, 444 U.S. 84 (1979). However, in conducting a search for contraband pursuant to a warrant, any occupant of the premises to be searched may be detained in a reasonable manner, which may include the use of handcuffs, for a reasonable time while the search is conducted. Muehler v. Mena, 544 U.S. 93 (2005); Michigan v. Summers, 452 U.S. 692 (1981). Such a detention is only justified for individuals within the immediate vicinity of the premises to be searched. If an individual is not in the immediate vicinity of the premises, then a detention of that individual must be justified by some other rationale. Bailey v United States, 568 U.S. ___, 133 S. Ct. 1031 (2013) (detaining suspect one mile away from premises was unreasonable).

d. Methods used to search

1) Fly-over 2) Technological device 3) Canine sniff 4) Field test of substance

e. "Plain view" doctrine

1) In public view Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public (e.g., physical characteristics, vehicle identification numbers, or items in open fields). 2) In private view In situations in which there is a reasonable expectation of privacy (e.g., in a suspect's house), a police officer may seize an item in plain view of the officer, even if it was not named in the search warrant or the discovery was not inadvertent, as long as (i) the officer is on the premises for a lawful purpose, and (ii) the incriminating character of the item is immediately apparent. If the officer is not legitimately on the premises, the plain view doctrine does not apply.

b. Objects sought

1) Papers and effects 2) Automobiles 3) Abandoned property

c. Persons and their attributes

1) Physical characteristics 2) Government informants

C. Search and seizure

1. Governmental Action 2. Defining "Search": The Violation of a Reasonable Expectation of Privacy 3. Search warrant requirements 4. Exceptions to the warrant requirement 5. Raising the issue of standing 6. Exclusionary rule

Valid search warrant

A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, supported by oath or affidavit. Facts supporting probable cause may come from several sources, including information from a reliable, known informant, or information from an unknown informant that can be independently verified. A search warrant is invalid where it is based solely on a tip from an unknown informant, as probable cause is not established.

a. Search incident to a lawful arrest

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. If the arrest is invalid, any search made incident to it is likewise invalid. Therefore, if a suspect is stopped for a traffic offense and given a citation but not arrested, then there can be no search incident to lawful arrest. 1) The Chimel standard A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area (his "wingspan") from which a weapon may be concealed or evidence destroyed. If the arrest occurs in a home, it is permissible to search "closets and other spaces immediately adjoining the place of arrest from which an attack could be launched." 2) Time limitations (temporal unity) A search incident to a valid arrest must take place promptly after the arrest in order to be valid. 3) Scope of search The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers "immediately associated" with the person (such as a shoulder bag or purse), so long as the containers are large enough to conceal a weapon or evidence of a crime. The search incident to lawful arrest exception does not extend to an arrestee's cell phone. Absent exigent circumstances, police must obtain a warrant before searching digital information on the cell phone of a person arrested. Riley v. California, 573 U.S. ___, 2014 U.S. LEXIS 4497 (2014). 4) Vehicle search incident to arrest To justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer's safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.Arizona v. Gant, 556 U.S. 332 (2009). 5) Impounded vehicle A legally impounded vehicle may be searched, including closed containers, such as glove box or a backpack, as part of a routine inventory search. South Dakota v. Opperman, 428 U.S. 364, 369-71 (1976). The warrantless search need not take place at the time that the vehicle is seized.

2) Automobiles

Although, under the Fourth Amendment, stopping a car constitutes a seizure of the driver and any passengers, there is a lesser expectation of privacy with regard to the automobile and its contents than with a home. Even so, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile. A call to 911 reporting erratic driving may give the police the reasonable suspicion needed to make a traffic stop if the report is reliable. a) Checkpoints Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not. Compare random stops: Police may generally not stop an automobile, even for a driving-related matter, without a reasonable, individualized suspicion of a violation of the law, unless the stop is effected on the basis of neutral, articulable standards. i) Immigration law enforcement When the purpose of the stop relates to the enforcement of immigration laws, any car may be stopped on a random basis at the border of the United States without a reasonable suspicion of wrongdoing. When a search does not occur at the border or its functional equivalent, all cars may be stopped at a fixed checkpoint without a reasonable suspicion of violation of an immigration law, but a car may not be singled out and randomly stopped without a particularized and objective basis. United States v. Cortez, 449 U.S. 411 (1981) (holding the stop of one car proper when officers could reasonably surmise that the car was involved in criminal immigration activity); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (affirming convictions based on stops at checkpoints at which all cars were stopped). ii) Search for witnesses A checkpoint maintained by police for the purpose of finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as (i) the checkpoint stop's primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle's occupants but other individuals; (ii) the stop advanced a public concern to a significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment. Illinois v. Lidster, 540 U.S. 419 (2004). b) Car's VIN The driver of a car does not have a reasonable expectation of privacy in the vehicle identification number (VIN) affixed to an automobile. New York v. Class, 475 U.S. 106 (1986). Consequently, a police officer's moving of papers that obstructed his view of this number did not constitute a search under the Fourth Amendment, and a gun found while doing so was admissible into evidence.

2) Motel room

As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. A motel clerk's consent to a governmental search of a room during the time it is rented is insufficient to justify the search.

2) Technological device

Attaching a device to a person's body without consent in order to track that person's movements is a search for Fourth Amendment purposes. Grady v. North Carolina, 575 U.S. ___, 135 S. Ct. 1368 (2015). With regard to automobiles, the Fourth Amendment does not prohibit the police from using technological devices to enhance their ability to search (e.g., radar detectors, computers to search license plates, surveillance equipment). United States v. Knotts, 460 U.S. 276 (1983) (placement of a tracking device on a car). However, physically intruding upon a suspect's property to install a technological device (e.g., a GPS tracker on a car) may constitute a search. United States v. Jones, supra. It is important to note the distinction between Knotts and Jones—in Knotts, the device was installed with the permission of the former owner (a person other than the suspect) before the car came into the defendant's possession; defendant Jones, on the other hand, owned the vehicle in question at the time the government installed the GPS device. The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search. Kyllo v. United States, 533 U.S. 27 (2001). Moreover, use of an electronic listening device to eavesdrop on a conversation made from a public phone booth can violate the speaker's reasonable expectation of privacy. Katz v. United States, supra. Flashlight. Because flashlights are ubiquitous, the use of a flashlight at night to illuminate the inside of a car does not constitute a search for Fourth Amendment purposes. Texas v. Brown, 460 U.S. 730 (1983).

a. Probable cause

Facts supporting probable cause may come from any of the following sources: i) A police officer's personal observations; ii) Information from a reliable, known informant or from an unknown informant that can be independently verified; or iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches. 1) Right to attack truthfulness of affidavit 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 only when the defendant can establish, by a preponderance of the evidence, that: i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and ii) The false statements were necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154 (1978). 2) Informants Courts use the totality of the circumstances test to determine whether information provided by a police informant is sufficient to create probable cause. The affidavit generally does not need to include any particular information about the informant, including the informant's identity, so long as a neutral magistrate can find that, based on the informant's information and all other available facts, there is probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213 (1983); McCray v. Illinois, 386 U.S. 300 (1967).

b) Open fields

Private property that lies outside the curtilage of a home, such as a farmer's field, is not protected by the home's umbrella of Fourth Amendment protection. Under the "open fields" doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., 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.

Anticipatory warrant

Police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. The probable cause requirement is satisfied when, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

c. Anticipatory warrant

Police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. The probable cause requirement is satisfied when, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

1. Governmental Action

Searches conducted by private citizens are not protected by the Fourth Amendment—there must be governmental action. However, the police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

2) Government informants

Some surveillance and investigation techniques have been held not to implicate any reasonable expectation of privacy because the targets of the surveillance were regarded as having assumed the risk that the people with whom they were interacting would be government agents. There is no reasonable expectation of privacy in conversations carried on with government informants or undercover officers. Similarly, if one party to a telephone call consents to wiretapping or agrees to record the call at the government's request, such monitoring will not trigger the Fourth Amendment rights of any other party to the call. United States v. White, 401 U.S. 745 (1971). A person also runs the risk that a third party to whom she turns over information may disclose such information to the government

3) Canine sniff

Use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property. Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013) (curtilage). In the absence of a physical intrusion, the use of drug-sniffing dogs does not violate a reasonable expectation of privacy. Illinois v. Caballes, 543 U.S. 405 (2005) (car); United States v. Place, 462 U.S. 696 (1983) (luggage). Officer's sense of smell: A police officer may also rely on his own sense of smell in ascertaining the presence of illegal drugs or alcohol. United States v. Sharpe, 470 U.S. 675 (1985) (marijuana); United States v. Ventresca, 380 U.S. 102, 104, 111 (1965) (alcohol).

3. Search Warrant Requirements

When a search occurs, a warrant serves to protect a person's privacy interests against unreasonable governmental intrusion. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized. Warrantless searches are per se unreasonable unless the search satisfies one of seven exceptions to the warrant requirement. a. Probable cause b. Particularity c. Anticipatory warrant d. Third-party premises e. Execution of warrant