Con Law

U.S. Constitution Amendments that apply to policing

• 1st Amendment

• 2nd Amendment

• 4th Amendment

• 5th Amendment

• 6th Amendment

• 8th Amendment

• 14th Amendment

1st Amendment

Name the Amendment

• Provides freedom of religion, speech, press, assembly, and petition

• symbolic speech

• video police actions

Limits on Freedom of Speech

What are these examples of?

• Obscenity

• Fighting Words

• Threats

• Incendiary Speech

2nd Amendment

Name the Amendment

• Right to keep and bear arms

4th Amendment

Name the Amendment

• prohibits unreasonable searches to or seizures by the government

• CRITICAL TO POLICING

  • the higher level of rights infringement, the more justification needed

  • Police must know what DOES and DOES NOT constitute a search and seizure

5th Amendment

Name the Amendment

• Protects citizens from double-Jeopardy and self-incrimination

Double Jeopardy

What is this?

• the prosecution of a person twice for the same offense

Self-Incrimination

What is this?

• making statements or providing information that could expose you to criminal liability

6th Amendment

Name the Amendment

• requires all persons charged with a crime to be informed of all the charges against them

• people charged with a crime have the right to counsel and speedy trial by an impartial jury

8th Amendment

Name the Amendment

• protects people from excessive bails or fines

• prohibits cruel and unusual punishment

14th Amendment

Name the Amendment

• provides the people of all states the right to “due process and equal protection under the law”

Due Process

What is this?

• protects people from government action by ensuring that people get a fair hearing and have an opportunity to be heard when they believe their Constitutional rights have been violated

Articles of Massachusetts Declaration of Rights- Policing

• Article XII (12)

• Article XIV (14)

Article 12 (XII)

Which Massachusetts Declaration of Rights Article is this?

• Due Process, Self-Incrimination, Jury Trial

  • protects against compelled self-incrimination, guarantees the right to a jury trial in criminal cases, ensures fair trial procedures

Article 14 (XIV)

What Massachusetts Declaration of Rights Article is this?

• Search and Seizure

  • prohibits unreasonable searches and seizures

  • warrants must be supported by probable cause and specific details

Search

Name the Term:

• physical invasion/intrusion of privacy by police on people, homes, or personal property to obtain or gather evidence

Seizure

Name the Term:

• when people take possession of property, make an arrest, or restrict a person’s ability to move freely

Reasonable Suspicion

Name the Term:

• “specific and articulable facts” which, when taken together, would convince a person of reasonable caution to believe that a person has committed, is committing, or is about to commit a crime

• LESS than probable cause, but MORE THAN A HUNCH

• IT IS THE LEGAL STANDARD THAT APPLIES TO TEMPORARY INVESTIGATIVE STOPS AND TO FRISK

Probable Cause

Name the Term:

• trustworthy facts and circumstances sufficient to convince a person of a reasonable caution to believe that is more likely than not that:

  • SEARCH: a specific item subject to seizure will be found in the place to be searched

  • ARREST: a crime has been committed and the person to be arrested has committed it

Establishing Reasonable Suspicion and Probable Cause

• sources of information

• Aguilar Spinelli Rule

• Specific and Articulable Facts

Sources of Information

• must establish both Reasonable Suspicion and Probable Cause using their own personal observations OR from information received from other sources

  • victims, witnesses, anonymous tips, etc.

• Collective Knowledge

  • KNOWLEDGE OF ONE IS KNOWLEDGE OF ALL

Aguilar Spinelli Rule

• Helps evaluate information from NON-POLICE SOURCE:

• Based on 2 prongs

  • Veracity

  • Basis of Knowledge

Veracity

Key aspects:

• is the source reliable or believable?

• When the source IS IDENTIFIED by name, the veracity prong of the rule is satisfied because there are consequences for lying to the police

• How reliable is the witness/information is or do they know what they are talking about at the moment

Basis of Knowledge

Key Aspects:

• How did the source or witness acquire the information?

• if the knowledge is gained through DIRECT, PERSONAL, SENSORY OBSERVATION the prong is satisfied

• Spontaneous report of an event usually proves basis of knowledge

• High degree of detail may show the source’s personal knowledge, BUT MAY NOT ESTABLISH VERACITY

• How do you know the information/crime was committed at the moment

Specific and Articulable Facts

Factors that can support both Reasonable Suspicion and Probable Cause include:

• area of encounter

• reason for encounter

• Officer training and experience

• Familiarity/lack of familiarity with defendant

• Defendant’s nervousness or evasive conduct towards the police

• High crime area

Race of Suspect (Specific and Articulable Facts)

Court will consider suspect’s race when considering their nervous or evasive behavior

• Commonwealth v. Evelyn

High Crime Area (Specific and Articulable Facts)

Must be “considered with some caution because many honest, law-abiding citizens live and work in high crime areas”

• Commonwealth v. Holley

Police MUST document specific crimes in the immediate area that are relevant to the case

Exclusionary Rule

If probable cause DOES NOT exist at time of an arrest, then the arrest is illegal and associated evidence WILL BE SUPPRESSSED and EVIDENCE IS EXCLUDED

Exclusionary Rule Examples

• make any evidence seized by police in an unreasonable search and seizure inadmissible

• evidence directly derived from the illegal search or evidence found incidental to the unlawful search will be suppressed (generally speaking)

• applies to statements made, evidence sized after an unlawful interrogation as well

Exclusionary Rule Invoked (Requirements)

• government action (police)

• Standing (violation or his/her Constitutional Rights)

• Reasonable Expectation of Privacy- KATZ TEST

  • does the individual have a subjective expectation of privacy?

  • would society recognize that expectation as reasonable?

• Probable Cause (Warrant or exception to warrant requirement)

Exclusionary Rule Exceptions

Purpose is to deter police misconduct and provide a remedy for individuals who constitutional rights were violated

court has made exceptions for situations in which the suppression of evidence would not deter police misconduct

• Attenuation/Purging the taint

• Independent Source

• Inevitable Discovery

• Defective Warrant

• Invalid Arrest

Attenuation/Purging the Taint (Exclusionary Rule Exceptions)

Where unlawful police action leads indirectly to discovery evidence or subsequent events reduce the impact of the unlawful action the court may decide that the evidence was so removed from the misconduct that it WILL NOT be suppressed

• Commonwealth v. Fielding

Independent Source (Exclusionary Rule Exceptions)

where evidence comes from two (2) sources- one legal and one unlawful- the evidence need not be suppressed just because one was unlawful

Inevitable Discovery (Exclusionary Rule Exceptions)

Where evidence is found illegally would have have been found legally later, they need not be suppressed

• whether the evidence would have been discovered by lawful means if the illegal search did not happen

• Severity of the alleged Constitutional violations

NEVER RELY ON INEVITABLE DISCOVERY TO SAVE A CASE

Defective Warrant (Exclusionary Rule Exceptions)

If police execute a search warrant and the warrant is later determined to be defective, the evidence will not necessarily be suppressed

court will consider whether the violation was substantial and prejudicial

Invalid Arrest (Exclusionary Rule Exceptions)

If evidence is seize during an arrest and the arrest is later found to be invalid, the court will consider whether the violation was substantial and prejudicial and whether suppression of the evidence will deter future similar violations

Voluntary Encounter

Most police-citizen interaction is voluntary, non-criminal in nature, not a seizure under 4th Amendment

Police officers do not need any legal justification to approach, talk with, or ask questions of any citizen in a public place, SO LONG AS THE CITIZEN IS WILLING TO LISTEN AND VOLUNTARILY ANSWER

Police cannot compel cooperation or seize a person without legal justification

SIMPLE CONVERSATIONS YOU ARE HAVING WITH THE PUBLIC

Voluntary Encounter- Best Practices

• communicate that they are:

  • “not under arrest”

  • “free to leave at any time”

  • “do not have to answer any questions”

• avoid using language that reasonably infers they are not free to leave:

  • “Stop”

  • “come over here”

  • “i need you to stay here”

• DO NOT touch or make physical contact with the individual

• DO NOT confine or otherwise restrict ability to move

Arrests

• _______ are seizures that initiate criminal prosecution

• _______ are one of the most intrusive types of seizures under the 4th amendment because they involve forcible restraint that deprives a person of liberty and freedom of movement

• higher standard of PROBABLE CAUSE IS REQUIRED for _____

• Cannot _______ for reasonable suspicion

Arrests with Warrant

written court orders based on probable cause that command police to take into custody and bring before the court, the person named in the warrant

MGL 276 § 21

• authorizes justices of supreme judicial, superior, or district courts as well as clerk magistrates who work with judges to issue criminal arrest warrants

• MA police officers should serve arrest warrants within a reasonable period of time to find the person

Valid Arrest Warrant

• Name

• Crime allegedly committed

• command that person be brought before the court

• signature of the official

• WARRANT MANAGEMENT SYSTEM (WMS)

Arrest Warrant Execution

Executed when the person named is arrested and brought before the court

• valid for execution by an official authorized to serve criminal processes in any jurisdiction

• not required to physically possess warrant at time of arrest but must provide as soon as possible

• may enter a residence to execute if there is reasonable belief that the location the residence of the subject and the person is at that location at time arrest warrant is executed

• Do not authorize police to search in areas that COULD NOT REASONABLY hide a person

• To enter a premise not listed on arrest warrant, police NEED CONSENT, EXIGENT CIRCUMSTANCES, or a SEARCH WARRANT

• Officer SHOULD confirm warrant is valid through WMS before making arrest

  • Commonwealth v. Maingrette

• Police must know and announce their presence and purpose before making forcible entry into a residence listed on an arrest warrant

  • forcible entry made without announcing identity and purpose is illegal and any obtained evidence may be suppressed under exclusionary rule

• Officers shall not dispense with this requirement except to prevent a credible risk of imminent harm

Arrest Fugitive with Warrant

“Fugitive Warrant” (MGL 276 § 20A) needed to arrest person based on a WARRANT FROM FOREIGN STATES AND JURISDICTIONS

• may make a warrantless arrest of fugitives in PUBLIC PLACE if fugitive was charged in another state with a CRIME THAT IS PUNISHABLE BY DEATH OR IMPRISONMENT FOR MORE THAN ONE (1) YEAR

• Commonwealth police should only make arrest of a fugitive with an NCIC warrant after confirming the out of state agency WILL EXTRADITE

Warrantless Arrest

Can make _______ _________ if they have probable cause and legal authority to make an arrest based upon the specific circumstance

once an officer makes a _______ _______, if the defendant will not be brought to court for arraignment within 24 hours of the arrest (holiday/weekend), officer must contact a judicial officer to evaluate facts, determine whether PC existed to make arrest

• JENKINS HEARING

• Commonwealth v. Jenkins

• _____ _____ may be made in a public place BUT officers may not enter a residence to make _____ ______ unless an exception applies

• Facts used

  • Officer’s knowledge

  • Officer’s observations

  • Corroboration of evidence

  • Victim/Witness statements

  • Suspect’s prior criminal record

  • Suspect’s confessions/admissions

  • suspect’s flight/secretive conduct

Authority to Arrest- Warrantless

• Felony committed IN OFFICER PRESENCE OR BASED ON PROBABLE CAUSE that felony was committed

• Misdemeanor committed IN OFFICER PRESENCE AMOUNTING TO BREACH OF THE PEACE OR TO ANTICIPATORY BREACH OF PEACE that is ongoing at time of arrest/was interrupted by arrest

• When authorized by statute:

  • Certain motor vehicle offenses

  • stealing property in Officer presence

  • Certain domestic violence offenses

  • Violations of SOME drug laws

Investigatory Stops (TERRY STOPS)

• short duration, warrantless seizures used to determine if PC exists

  • specifically if crime HAS or WILL BE COMMITTED

  • TERRY STOPS

• To conduct investigative stop

  • Must have reasonable suspicion BASED ON “SPECIFIC AND ARTICULABLE FACTS” that the individual HAS, IS COMMITTING, or IS ABOUT TO COMMIT A CRIME

2 Step Inquiry to determine Terry Stop Validity

What is this?

• Whether initiation of investigation was permissible under circumstances

• Whether scope of seizure was justified under circumstances

Investigative Stop

Field interview or consensual encounter becomes a _______ ______ when:

• officer uses police power to COERCE PERSON TO STAY

  • taking ID/License, using authoritative tone, activation of blue lights

Investigative Stop- LIMITATIONS

• degree of force

• duration- do not hold for excessive time

• scope- depends on what areas you want to cross into

• Location

• Questioning

• Inferences

• Anonymous tips in emergency situations

Investigative Stops- Best Practices

• MUST HAVE REASONABLE SUSPICION BASED ON “SPECIFIC AND ARTICULABLE FACTS

  • time of day

  • officer’s training, experience

  • officer’s corroboration of facts

    • HOW YOU WRITE IT, ACCURATE REPORTING, HOW YOU TALK ABOUT THEM

  • Officer’s knowledge of location

    • HIGH CRIME AREA

  • Suspects description, proximity to crime scene

    • HOW TO PALCE SUSPECT AT LOCATION OF CRIME

  • Suspect reaction to police presence

Vehicle Exit Orders

• Must have either observed CIVIL VEHICLE INFRACTION or have REASONABLE SUSPICION OF CRIMINAL ACTIVITY to support stop BEFORE initiating stop

• Justified when:

  • warranted in belief that OFFICER SAFETY IS THREATENED

  • Police have REASONABLE SUSPICION OF CRIMINAL ACTIVITY; or

  • actively CONDUCTING SEARCH OF VEHICLE ON OTHER GROUNDS

• Does not take much to establish reasonable basis to JUSTIFY based on safety concerns

  • OFFICER MUST HAVE OBJECTIVELY REASONABLE CONCERN FOR SAFETY

• May be based on other pragmatic reason

  • ordering passenger to exit vehicle being towed

• May also issue when conducting their community caretaker function

  • IF ORDER WAS REASONABLY NECESSARY TO DETERMINE IF PERSON IS IN CONDITION WHERE THEY WOULD POSE DANGER TO THEMSELVES OR OTHERS

Curtilage

• immediate area surrounding a dwelling

  • driveways, gardens, decks, swimming pools, garages, fenced in area, storage sheds

• land immediately surrounding dwelling that is associated that is used for domestic and private activities of household

Curtilage- Proximity, Layout, Purpose

• land MUST be close to dwelling and arranged in way that supports use as part of home

• MUST serve purpose such as gardens, yard, driveways, area for domestic activities

Curtilage- Ownership, Purpose

• past and present ownership (historical and current) are relevant in determining curtilage

Curtilage- Significance

• essential for understanding property planning, legal protections, determining scope of privacy rights

Curtilage- How to Determine

• distance/proximity to main dwelling?

• item within separate enclosure surrounding dwelling?

• what is item/area used for?

• what steps taken to restrict public access?

  • I.e. No Trespassing, Beware of Dog

Search Warrants

Written documents issued by Massachusetts judicial officials

• empowers officers to search, without consent and by force (if needed), a defined place for PEOPLE OR EVIDENCE OF CRIME

CAN BE ISSUED FOR PROPERTY OR PEOPLE

• WARRANTS WILL BE DIFFERENT

Property Examples

• books, papers, documents, records, stolen property

• property stolen, embezzled, obtained by false pretenses, or otherwise obtained in commission of crime

• property intended for use/used in crime

• property intended for use/used in crime

• property unlawful to possess/controlled for unlawful purposed

  • firearm, narcotics

• dead body of human being

• living person that has a current, outstanding arrest warrant

Warrant- Authority and Jurisdiction

• persons with powers granted by the statue to have authority to issue

  • Superior Court Judge

  • District Court Judge

  • Superior Court Clerk Magistrates

  • District Court Clerk Magistrates

Warrant- Application

MGL 276 § 2A and 2B

• state of PC showing property, articles, persons to be seized WIL BE FOUND AT PLACE LISTED ON SEARCH WARRANT

• Description of property, persons, premises MUST BE SPECIFIC AND DETAILED

  • To extent that anyone unfamiliar would know

    • WHERE TO GO

    • WHO TO ARREST

    • WHAT TO SEIZE

Search Incident to Arrest

MGL 276 § 1

• May be made ONLY FOR THE PURPOSES OF:

  • SEIZING FRUITS,

  • INSTRUMENTALITIES,

  • CONTRABAND/EVIDENCE OF CRIME FOR ARREST (prevent destruction/concealment),

  • REMOVING ANY WEAPONS TO RESIST ARREST OR EFFECT ESCAPE

• May be conducted on those under arrest and any area WITHIN IMMEDIATE CONTROL TO PREVENT

  • escape

  • harm to public

  • destruction/concealment of evidence of crime

Search Incident to Arrest- SCOPE

• must be performed CONTEMPORANEOUSLY (during same period of time) in place and time of actual arrest

• specific boundaries of places, items, people that LEOs may lawfully examine

• MUST TAILOR SEARCH PARAMETERS

Grabbing Area

• size depends on circumstances

  • Number of officers involved in arrest

  • number of suspects present during arrest

  • positioning of police officers and suspects in relation to searched area

  • how suspects were restrained prior to search

Strip Searches

• last layer is moved but not necessarily removed, exposes view of intimate area of person

• MUST HAVE PC TO BELIEVE PERSON HAS CONCEALED WEAPON OR EVIDENCE OF CRIME

• would not otherwise be discovered by standard search incident to arrest of outer clothing

Strip Seaches- Best Practices

• MUST be done in private area

  • not otherwise accessible, viewable to public

• Have NO MORE THAN one additional officer present

• Gender of officer, suspect, and witness ARE THE SAME

• Officer DOES NOT PHYSICALLY TOUCH arrestee

  • CAN ASK ARRESTEE TO RE-POSITION AS NEEDED

• Search done in NON-HUMILIATING MANNER

• CONSISTENT WITH DEPARTMENT WRITTEN POLICY

Body Cavity Searches

• Two types

  • visual

  • manual

• if item can be safely removed without touching, probing, manipulating rectum- it is NOT a body cavity search

• Flicking a bag of drugs IS NOT a manual body cavity search

Body Cavity Searches- Visual

What type of Body Cavity Search

• strip searches that extend to visual inspection of genital or anal areas

• PC REQUIRED

• NO degree of physical touching by police

Body Cavity Searches- Manual

What type of Body Cavity Search

• INCLUDE SOME DEGREE of touching and probing

• REQUIRE a search warrant issued by JUDGE (NOT CLERK)

  • Based on “STRONG SHOWING OF PARTICULARIZED NEED SUPPORTED BY HIGH DEGREE OF PROBABLE CAUSE” that contraband is hidden in cavity

• DOCTOR WILL CONDUCT

Search Incident to Arrest- Motor Vehicles

• need PROBABLE CAUSE to believe additional evidence may be in trunk (to search inside of trunk at scene of stop without warrant)

Protective Sweeps

Limited, warrantless cursory searches to check premises FOR PEOPLE, NOT EVIDENCE

PERMITTED IF officer possesses REASONABLE BELIEF based on “SPECIFIC AND ARTICULABLE FACTS” that third parties on premise present:

• present danger to officers; or

• will destroy evidence that PC to believe is located there

Automobile Exceptions- Carroll Doctrine

Inherent mobility makes it easier to remove/destroy/relocate evidence to another jurisdiction

If there is PC of evidence of crime and vehicle is stopped/located in public, ______ Doctrine allows officer to search anywhere inside where evidence could REASONABLY be located without warrant

Probable Cause Affidavit

The following are needed for _____ ______ _______

• investigating officer background, training, education, knowledge, overall experience

• investigating officer observations

• corroborating statements from officers, victims, witnesses, informants

• criminal history of suspects

Premises Descriptions- Dwellings

How to Describe this

• complete physical address, map with directions, recent photographs

Premise Descriptions- Motor Vehicles

How to describe this

• make, model, year, color, license number, VIN, unique features, recent photograph

People Descriptions

What does this describe?

• full name/alias

• Date of Birth

• Sex/Race

• Height/Weight

• Hair/Eyes Color

• Scars/Tattoos/Unique features

  • Recent Photographs

Property Descriptions

What does this describe?

• Colors

• sizes

• make/model/serial numbers

• unique identifying seizures

• recent photographs

Search Warrant Execution

• Must be executed as soon, as reasonably as possible

• CANNOT BE EXECUTED MORE THAN 7 DAYS AFTER ISSUE

• Must possess a copy of warrant while at premises

• Copy MUST be provided to persons in control of premises as soon as practical

Search Warrant- Knock and Announce

• SHALL (WILL) knock and announce presence and purpose BEFORE forcibly entering unless no-knock was authorized

  • Forcible entry made without announcing identity, purpose IS ILLEGAL AND EVIDENCE WILL BE SUPPRESSED

  • SHALL NOT forgo knock and announce requirement except to prevent credible risk of imminent harm

  • No rule specifying wait time but must give notice in manner to be heard by anyone present

    • REASONABLE AMOUNT OF TIME TO ANSWER DOOR

  • Decision to knock and announce must be reassessed at time of execution

Search Warrant- No Knock

ONLY JUDGE can authorize

• Need PC that item will be found at location to be searched

• must establish if officers announce presence, lives/lives of other will be endangered

• include attestation there is NO REASON TO BELIEVE minor children, adults over 65 are in home

  • UNLESS THERE IS CREDIBLE RISK OF IMMINENT HARM

    • DO NOT WANT CHILDREN OR ELDERLY EXPOSED TO SEEING INVASION OF PRIVACY UNFOLD

Seized Property

MGL 276 § 3

requires officer to safely keep all seized property if necessary to be analyzed or presented as evidence in trial

• at discretion of court, seized may be returned to its rightful owner, forfeited, sold, or destroyed as public interest requires

• evidence seized or obtained during execution shall be inadmissible if LEO violates announce requirement

Special Circumstances

JUDGE WOULD ANNOTATE ON SEARCH WARRANT UNDER SPECIAL CIRCUMSTANCES:

• Nighttime (2200-0600)

• anticipatory- requires a triggering event (i.e. motor vehicle stop)

• any person present- need PC to believe any persons present are involved in criminal activity

Search Warrant Returns

MGL 276 § 3A

• requires return to issuing authority as soon as possible once served but not later than 7 days from issue

• Return required for court to review documentation of execution

Consent Search

What is this?

• Individual waives 4th Amendment right for officers to search places where person giving _____ has reasonable expectation of privacy

• No legal requirement for in writing- Best practice to document in writing

• must by VOLUNTARY AND CLEARLY COMMUNICATED

  • provided willingly and without coercion (Voluntary)

  • “You can search my car”, “I’ll let you look in my car”

• Officer can inform individuals that they will apply for search warrant- only recommended if have justification and PC (risky)

• NOT REQUIRED TO INFORM RIGHT TO REFUSE

Scope of Consent

• may be limited by person giving consent

  • duration, location, number of officers

Consent Authority- Actual Authority

Name this Consent Authority Type

• person lives in home with shared right of access

• written contract that specifically empowers person to allow officers to enter dwelling, search for, and seize contraband/evidence

All occupants who have mutual use have _______ authority to consent to search

• RIGHT TO ENTER FOR LIMITED PURPOSES IS NOT ENOUGH FOR THIS

Spouses, roommates may give consent for common area

• CANNOT give for areas where individual has exclusive privacy

CANNOT search over objection of another co-occupant who is present

• NOT OBLIGATED to contact anyone not physically present to ask for consent

Consent Authority- Apparent Authority

Name this time of Consent Authority

• When officer makes faulty judgement about actual authority over home

  • mistake MUST be reasonable

• Did officer reasonably believe person had actual authority over home AND make diligent inquiry into authority?

  • Diligent inquiry

    • based on facts, not assumptions

    • if circumstances would cause reasonable person to question truth of assertion of authority to consent

      • officer must investigate to clear up ambiguity

Consent Specification

• Can be revoked at any time

• if revoked, officer MUST STOP immediately

• if revoked after contraband/evidence found- NEED PC or WARRANT to continue

• NOT REQUIRED BY LAW TO INFORM RIGHT TO REVOKE AT ANY TIME

KATZ Test

• must expect particular place will be private (subjective)

  • did individual actually expect privacy?

• Expectation must be one society recognizes as reasonable (objective)

  • is the expectation one that society recognizes as reasonable?

• 4th Amendment protects unreasonable searches, seizures- NOT PLACES

  • if GOV intrudes where there IS NO REASONABLE EXPECTATION OF PRIVACY- Search HAS NOT taken place

Katz v. United States

• 1967

• extended constitutional protection to conversations, personal communications even in public/semi-public locations

• established eavesdropping, wiretapping require warrant if intrude on reasonable expectation of privacy

• Recognizing privacy is personal right- showed government intrusion wherever their expectation of privacy is reasonable

Reasonable Expectation of Privacy

What are these examples of?

• Body

• home

• curtilage

• personal property

• place of business

• electronic devices

Cell Phones- Reasonable Expectation of Privacy

• pinging cell phone is search in constitutional sense

  • Commonwealth v. Almonor

• Answering ringing phone is search

  • Commonwealth v. Barrett

Rental Car- Reasonable Expectation of Privacy

• person not listed on agreement but in possession provided by actual renter DOES have expectation of privacy on vehicle

  • Byrd v. United States

No Expectation of Privacy

• May conduct searches without warrant when no ______ ______ __ ______ exists

  • discard, abandoned, left in plain view property

No Expectation- Open Field

• any part of property surrounding a dwelling and is NOT part of curtilage

  • unused land on 12 acre property

• Courts DO NOT recognize reasonable expectation in places that can be easily seen in plain view from ground/air

• “No Trespassing” or adjacent do not prevent admissibility of evidence seized from open field in plain view

No Expectation- Abandoned Property

• no reasonable expectation interest

  • real property

  • garbage (placed outside curtilage)

• MUST CONSIDER whether discarded property in a place and circumstances in which they could no longer have reasonable expectation it items, contents

  • Commonwealth v. Straw

• Owners who abandon property involuntarily may still retain reasonable expectation to privacy

  • Smith v. Ohio

Plain View Seizures

• allows police to seize evidence without search warrant when LAWFULLY present in place, clearly see items that are contraband/evidence of crime out in open

Plain View Considerations

• were police lawfully present when item was viewed?

• did police unintentionally come across item?

• did police have lawful right to access item?

• was incriminating character of item immediately apparent OR was item reasonably related to criminal activity the police are already investigating?

Plain View Example 1

Police may enter private area with consent, to answer 911 service call/execute warrant/exigent circumstances

if lawful entry, may seize illegal items in plain sight even if items are not related to reason for entry

Plain View Example 2

Officer standing on public sidewalk of apartment complex may view illegal items through open doorway/unobstructed window

Still require search warrant to seize item without exigent circumstances/consent to enter

Plain View- Special Devices

• Binoculars, flashlights can be used to enhance/illuminate

• high-powered telescopes can be used to view open fields

  • CANNOT USE TO LOOK INTO HOMES

• Aircraft may be used if made from lawful, navigable airspaces using unaided eye

• K9 can be used in public areas

  • “sniff” is not search under 4th amendment

    • no reasonable expectation in public air

    • ONLY EXCEPTION: car stopped for infraction and reasonable suspicion, sniff is required around vehicle in order to justify extended detention

Exigent Circumstances

urgent, emergency situations that allow LEOs to enter/search/seize property without warrant when waiting would risk harm/escape/destruction of evidence

BOTH PC and:

• reasonable likelihood of danger to officers/third parties absent immediate action

• reasonable likelihood of imminent removal/destruction of evidence

• risk of flight by wanted person

IF CAN SAFELY SECURE- even for extended period- MUST DO SO