Criminal Procedure - Criminal Process & the 4th Amendment

What is the Fourth Amendment?

PROTECTION AGAINST UNREASONABLE SEARCHES, SEIZURES AND ARRESTS

Under the 4th Amendment, what is a SEARCH?

A search is ANY GOVERNMENTAL INTRUSION UPON A REASONABLE EXPECTATION OF PRIVACY.

FOURTH AMENDMENT: For a SEARCH, governmental conduct is required. What does "governmental conduct" mean?

• Intrusion must be by a government agent

  • (publicly paid police, private persons acting at police direction, deputized persons, public school officials - PRIVATELY PAID POLICE ARE NOT GOVERNMENT AGENTS UNLESS DEPUTIZED).

FOURTH AMENDMENT: For a governmental search to occur, there must be a REASONABLE EXPECTATION OF PRIVACY - REASONABLE/JUSTIFIABLE meaning?

• Person manifests ACTUAL AND SUBJECTIVE expectation of privacy +

• SOCIETY recognizes it as REASONABLE. (Review Page 4 of Flemings outline for examples)

FOURTH AMENDMENT: For a SEARCH - consider the TOTALITY of the circumstances when using sense-enhancing devices as police BECAUSE:

Use of sense-enhancing devices like thermal imaging is NOT commonly used and thus is a search (thermal imaging to find marijuana grow inside a home from outside

FOURTH AMENDMENT: For a SEARCH, the 4th amendment protects PEOPLE but not places and as such there is NO EXPECTATION OF PRIVACY in OBJECTS HELD OUT TO THE PUBLIC such as the following:

Bank records, voice exemplars, abandoned property, open fields, handwriting, telephone numbers dialed to provider, canine sniff, false confidences, observation from a plane or helicopter, discarded garbage

FOURTH AMENDMENT: When a SEARCH WITH A WARRANT is conducted it will ALWAYS BE REASONABLE if the warrant is:

• Issued by a neutral magistrate

• PARTICULARLY describes the things to be seized and the PERSON or PLACE to be searched

• Police provide a sworn affidavit establishing probable cause justifying the search.

FOURTH AMENDMENT: When a SEARCH WITH A WARRANT is conducted, PROBABLE CAUSE in the warrant means that there were FACTS and CIRCUMSTANCES within the AFFIANTs knowledge were were sufficient to establish that:

• A person of REASONABLE CAUTION would believe that

• The evidence in question WILL BE FOUND.

  • Probable cause does NOT mean CORRECT cause.

FOURTH AMENDMENT: In a SEARCH with a WARRANT, an AFFADAVIT MAY be based upon HEARSAY (out of court statement - uncorroborated claims) to establish probable cause if it meets the following test:

• By TOTALITY OF THE CIRCUMSTANCES,

• There is a fair probability that contraband or evidence of a crime will be found in a particular place.

  • Contributing factors include reliable informants, or informants with a sound basis of knowledge and police corroboration.

FOURTH AMENDMENT: In a written search warrant, the Affidavit may be based upon Corroborated hearsay IF:

The corroborated hearsay is corroborated by a reliable source.

FOURTH AMENDMENT: TRUE OR FALSE? In a written search warrant based on hearsay, the information need not e disclosed unless his nonappearance will bear on the determination of guilt or innocence or if he will subsequently be a witness.

TRUE

FOURTH AMENDMENT: When police conduct a search warrant, when is knock and announce required? When is a no-knock entry allowed?

• Police must knock and announce when executing a search warrant in a home unless an exigency exception applies.

• No knock entries are allowed when police have a reasonable suspicion that announcement would be:

  • Futile, dangerous, or result in destruction of evidence.

    • Courts find that 10-15 seconds is sufficient notice. Also should be noted that 4th amendment is violated when police invite members of media to witness execution of a valid search warrant.

FOURTH AMENDMENT: Do Administrative Searches (such as H&S inspections) require a warrant if consent is not given? What about government office workers effects or messages on department phones?

Yes - it requires a diluted form of probable cause.

• Government worker's effects can be searched if reasonable given circumstances - employees still retain reasonable expectation of privacy.

  • Pager or text messages on a work phone can be searched

FOURTH AMENDMENT: Is any form of electronic surveillance (to include wiretapping) a violation of ones reasonable expectation of privacy?

Yes, such surveillance will constitute a search.

FOURTH AMENDMENT: Surveillance warrant's have stricter standards in their request to a judge which include:

• Conversations must be described with particularity

• PC must exist that the crime has been or is being committed

• Wiretapping must be limited in time not to exceed 30 days per warrant

• Suspects must be named

• Police must return to the court and present recorded conversations

• Wiretap shall terminate when desired information is obtained.

FOURTH AMENDMENT: Regarding electronic search warrants, in addition to the requirement that police follow stricter standards, what are the three additional considerations:

• Warrants aren't required is one of the party consents.

• Each party to a conversation assumes the risk.

• Informers and "false friends" are OK but police trickery is forbidden.

FOURTH AMENDMENT: What is the general requirement of the 4th amendment for SEARCHES WITHOUT WARRANTS?

The general 4th amendment requirement is that a WARRANT MUST BE OBTAINED FOR A SEARCH AND THE BURDEN OF EXEMPTION FROM THE RULE IS ON THE PROSECUTION.

FOURTH AMENDMENT: For searches without warrants, there are a large list of exceptions. What is the ACRONYM to help remember the EXCEPTIONS TO A SEARCH WARRANT?

CAL SIPS PEPSI

FOURTH AMENDMENT: Using the ACRONYM of CAL SIPS PEPSI, what are the 12 EXCEPTIONS TO A SEARCH WARRANT

• CONSENT

• AUTO SEARCH

• LICENSING/ADMINISTRATIVE POWER

• SEARCH INCIDENT TO ARREST

• IMPOUNDMENT

• PLAIN VIEW

• SCHOOL/CHILD

• PUBLIC POLICY

• EXIGENT CIRCUMSTANCES

• PROBATIONS/PAROLEES

• STOP/FRISK

• INVENTORY

FOURTH AMENDMENT: One of the exceptions to a search warrant is SCHOOL-CHILD. What does this mean and what are the basic considerations?

• A PUBLIC SCHOOL OFFICIAL can REASONABLY search a student and effects

• PROVIDED there is REASONABLE BELIEF that the STUDENT is VIOLATING a SCHOOL RULE or CRIMINAL LAW.

  • STRIP SEARCHES are generally violation due to INTRUSIVENESS if offense is minor (hidden drugs in underwear).

FOURTH AMENDMENT: One of the exceptions to a search warrant is EXIGENT CIRCUMSTANCES. What does this mean and what are the (5) examples?

• Where a DELAY WOULD RESULT in DESTRUCTION OF EVIDENCE, a LOSS of EVIDENCE, or ENDANGERMENT of LIFE or PROPERTY

• The NINE EXAMPLES are:

  • (1) ACTIVE STRUGGLE;

  • (2) MOVING VEHICLE;

  • (3) BLOOD SAMPLES;

  • (4) HOT PURSUIT;

  • (5) PC DRUGS IN A HOME AND WILL BE DESTROYED (entry allowed for police to detain and then obtain warrant) - ADDITIONAL CONSIDERATIONS are that during DUI investigations, natural dissipation of BAC in blood is not an exigency and a warrant is still required,

FOURTH AMENDMENT: When police conduct a SEARCH INCIDENT TO LAWFUL ARREST, it must comply with these THREE REQUIREMENTS:

• (1) The arrest itself must first be LAWFUL

• (2) The SCOPE of the search must be within defendant's "lunge span" to include passenger compartment of car, full inventory of person and property in possession pursuant to arrest at the station, protective sweeps if reasonable belief the area swept harbors danger to police.

  • ADDITIONALLY, police may NOT search arrested person's motor vehicle UNLESS they are UNSECURED + within REACHING DISTANCE of passenger compartment OR officer has PC evidence relevant to the crime for which arrest was made may be found. Also, police may NOT examine person's cell phone as part of a search incident to arrest without warrant, consent or exigency.

• (3) The search must be CONTEMPORANEOUS WITH ARREST meaning no unreasonable delay.

FOURTH AMENDMENT: When police stop vehicles, there must be reasonable suspicion to stop the car. SEVEN considerations are:

• (1) Officer observations can be used for reasonable suspicion

• (2) Pretextual stop which provided PC exists for the traffic violation

• (3) Officer's can order everyone out of the car

• (4) Police do not need to tell you if you are free to leave

• (5) Police may stop a car via anonymous 9-1-1 call about possible DUI driver due to governmental interest to prevent harm

• (6) Police's reasonable mistake will still give rise to reasonable suspicion

• (7) Traffic Stop cannot last longer than necessary for its purpose and extending the stop to conduct a dog sniff is an unreasonable seizure.

FOURTH AMENDMENT: When police stop a car, the SCOPE of PROBABLE CAUSE to SEARCH has FOUR CONSIDERATIONS:

(1) When there is already PC of contraband in a vehicle, evidence of such crime may be searched for in the entire car + trunk and open any place where such contraband could REASONABLY CONTAIN THE ITEMS for which there is PC to search.

(2) Vehicles are mobile and FLEETING TARGET's which justifies search of trunk and interior compartments when there is PC.

(3) PUBLIC SAFETY EXCEPTION allows police to search a vehicle absent a warrant

(4) A certified drug sniffing dog can provide PC to search a vehicle

FOURTH AMENDMENT: When police stop a car, IMPOUNDMENT THEORY means that police must have a LAWFUL reason to impound the vehicle. Once a lawful reason has been established, an inventory search may be conducted. What is the primary purpose of an inventory search and is discovered contraband admissible? Does it matter if police have discretion to do or not to do an inventory?

• (1) The primary purpose of an inventory search is to protect against theft, vandalism or negligence allegations, and contraband found is admissible.

• (2) So long as there is a police procedure in place allowing inventory searches, an inventory search will be lawful regardless if the officer has the discretion to do or not to do the inventory search.

FOURTH AMENDMENT: When an automobile is stopped by police, is there a lower expectation of privacy in public places?

• Yes, expectation of privacy is lower in public places and technological aids do not interfere with possessory interest in vehicle.

  • (but not GPS TRACKERS AFFIXED TO THE CAR)

• PC may justify warrantless search of a motor home subject to mobility factors (RV must be mobile).

• This lower expectation of privacy extends to boats and airplanes.

FOURTH AMENDMENT: PLAIN VIEW DOCTRINE requires police to be in compliance with the following three things:

• (1) Police must be LEGITIMATELY on the premises

• (2) Police must discover objects that they have probable cause to believe are contraband or instrumentalities or fruits of crime

  • (police need PC to believe an item has been stolen before thoroughly examining it; as long as item is immediately apparent that item to be seized is incriminating, it is admissible; if officer lawfully positioned during a TERRY frisk, officer may reach into suspect's clothing and seize contraband based on plain feel)

(3) Evidence was in PLAIN VIEW (plain smell, touch, hear or sight).

FOURTH AMENDMENT: What is a CONSENT search and how do you know if it is valid?

• A CONSENT search is when an individual voluntarily agrees to a search and thus waives his 4th amendment right.

  • The consent is only valid if it is VOLUNTARY and INTELLIGENT based on the totality of the circumstances

FOURTH AMENDMENT: During a CONSENT search, is it necessary that the detained person know they have the right to refuse?

No - but may be considered under totality of the circumstances. However, police do not need to let someone know they are free to go before obtaining valid consent to search.

FOURTH AMENDMENT: During a CONSENT SEARCH, is the SCOPE of the SEARCH LIMITED to the SCOPE of CONSENT?

YES!

Note that if consent to search an automobile was given, then searching into closed containers is within the scope of consent given.

FOURTH AMENDMENT: When police conduct a CONSENT SEARCH, the CONSENT of one party to SEARCH premises OWNED or POSSESSED by ANOTHER is VALID only if the consentor: ____________________

had EQUAL RIGHTS TO USE OR OCCUPATION

FOURTH AMENDMENT: There are several considerations when evaluating AUTHORITY to CONSENT.

• (1) LANDLORDS and INNKEEPERS CANNOT consent to searches of occupied rooms

• (2) EMPLOYERS can ONLY consent to employee's WORK AREA but not to areas where there is a reasonable expectation of privacy.

• (3) Law is UNCLEAR on whether a PARENT can CONSENT to SEARCH of a child's room, particularly as to CLOSED CONTAINERS.

• (4) SPOUSES, ROOMMATE, CO-USERS: Limitations exist where the AREA to be SEARCHED is NOT a common area

• (5) POLICE may SEARCH a home when someone they mistakenly believe has authority to consent to a warrantless search allows them to SO LONG AS POLICE REASONABLY BELIEVE THEY POSSESS COMMON AUTHORITY over the premises

• (6) If ONE resident invites a search, but ANOTHER resident objects, then NEITHER is the "master possessor" and may not override the other's constitutional right to deny entry into their castle.

• (7) If a COTENANT provides consent to a search WELL after suspect has been REMOVED from premises, such search MAY qualify as warrantless consent and THUS defendant's previously stated objection while present is NOT a continuing assertion of the 4th amendment, and MAY be overridden by a cotenant.

FOURTH AMENDMENT: The criminal process begins with a complaint of police on-view. Police determine if there is PC or with aid of warrant, arrest and interrogate. If sufficient PC, suspect is booked and there is an initial appearance to assign counsel, set bail, delineate crime and warn of additional rights. What 7 steps come next?

• Adversarial preliminary hearing to decide whether there is PC to try the defendant (also known as arraignment. In some jurisdictions, this is replaced with a grand jury indictment.

• Defense motions to suppress or dismiss

• Taking a plea

• Trial

• First appeal "of right"

• 2nd and 3rd and discretionary appeals to US Supreme Court

• Collateral appeal aka HABEAS CORPUS

FOURTH AMENDMENT: Public Policy and Administrative Searches: Is Probable Cause required for Border or Airport searches?

NO PC required at ports of entry, HOWEVER, a BODY search requires reasonable suspicion subject to DUE PROCESS standards

FOURTH AMENDMENT: Public Policy and Administrative Searches: What about fixed checkpoints like border checkpoints, sobriety checkpoints, contraband and drug checkpoints, or hit and run checkpoints? Is PC required?

• Border checkpoints - Border officials may stop vehicles at reasonably located and fixed checkpoints even without reasonable suspicion, BUT there MUST be PC prior to a SEARCH

• Sobriety checkpoints - No violation of 4th amendment SO LONG AS police perform initial stop in a structured manner (every other car is stopped)

• Drug/Contraband checkpoint (using sniffing dogs) - violates the 4th amendment

• Hit and run checkpoints - acceptable

FOURTH AMENDMENT: Public Policy and Administrative Searches: What about regulations requiring blood or breath testing for railroad employees under certain conditions? Mandatory drug testing for federal workers? Random urine tests of public school athletes? Candidates of public office required to take a drug test? Is probable cause needed?

• Railroad employee regulations: Under certain conditions, reasonable searches and did not require probable cause

• Mandatory drug testing of federal workers: No privacy violation

• Random urinalysis drug testing of public school athletes: No 4th amendment violation if consent is required to be participant on the team.

• Candidates for public office: CANNOT be required to take and pass drug test

FOURTH AMENDMENT: Public Policy and Administrative Searches: If a package has been lawfully determined to contain contraband, is a subsequent reopening by custom agents after delivery to defendant a “search?”

NO unless substantial likelihood contents altered during gap in surveillance.

FOURTH AMENDMENT: True or false: The Fourth Amendment generally does not protect a non-U.S. citizen who has no substantial connection to the United States when U.S. officials search that person's property located in another country.

True - A non-resident alien is not “the people” of the United States.

FOURTH AMENDMENT: Licensing and Administrative Power Searches: CLOSELY REGULATED INDUSTRY EXCEPTIONS:

The following participants in REGULATED activities are subject to governmental intrusions WITHOUT a warrant or WITHOUT probable cause (4):

• FIREARM RETAILERS

• LIQUOR RETAILERS

• NARCOTIC RETAILERS

• (Some jurisdictions: AUTOMOBILE JUNKYARDS)

  • Note that if it is not a HIGHLY REGULATED INDUSTRY (hotels) then an administrative search is not valid under the closely regulated industry exception.

FOURTH AMENDMENT: Licensing and Administrative Power Searches, PROBATION and PAROLE - is PC required for a government search?

If a term of release, NO PC or warrant is required INCLUDING their home and person.

FOURTH AMENDMENT: What is a SEIZURE?

• Exercise of dominion and control

• By the government

• Over a person or thing

FOURTH AMENDMENT: On an EXAM when there is a SEIZURE of a person, you should analyze:

• Analyze the VALIDITY of the arrest as a SEIZURE (element) under the FOURTH amendment rule

FOURTH AMENDMENT: SEIZURE’s of persons (arrests) MUST be based on PROBABLE CAUSE - T/F?

TRUE

FOURTH AMENDMENT: TRUE OR FALSE? When officers make an arrest supported by probable cause to hold a suspect for a serious offense and bring him 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 the Fourth Amendment.

TRUE

FOURTH AMENDMENT: TRUE or FALSE? an investigatory stop must be temporary and no longer than necessary to effectuate its purpose (removal of suspect without his consent from public area in airport to police room found a seizure).

TRUE

FOURTH AMENDMENT: When evaluating SEIZURE, you should look for deprivation to freedom of movement via: a de facto arrest, see if using handcuffs is acceptable depending on dangerousness of the suspect, officers executing search warrant are permitted to detain occupants of premises while a proper search is conducted, etc?

TRUE

FOURTH AMENDMENT: The U.S. Supreme Court ruled that criminal suspects fleeing from police are not "seized" for constitutional purposes until an officer makes physical contact or the suspect submits to a show of the officer's authority. TRUE OR FALSE?

TRUE

FOURTH AMENDMENT: The Supreme Court ruled that a police roadblock completely crossing a highway, forcing a motorist to stop, is a "seizure" for Fourth Amendment purposes. The Court stated, "The language, history and judicial construction of the Fourth Amendment indicate that a seizure occurs when governmental termination of a person's movement is effected through means intentionally applied." TRUE OR FALSE?

TRUE

FOURTH AMENDMENT: TRUE or FALSE? If the police have reasonable suspicion of a crime, they can arrest suspect for refusing to identify him or herself.

TRUE

FOURTH AMENDMENT: Arrests with a warrant requires what two things?

• Probable cause (facts sufficient to warrant a reasonable person to believe that the suspect had committed the offense)

• AND an Affidavit submitted and approved by a magistrate.

FOURTH AMENDMENT: If police wish to enter a suspect’s home to make an arrest of the suspect, an arrest warrant must first be obtained unless there are either:

• Exigent circumstances OR

  • Occupant has given consent to entry

FOURTH AMENDMENT: Knock-Notice is required UNLESS:

• Exigent circumstances or consent exist

  • Officers need not comply with knock/announce if they have reason to believe evidence may be destroyed, suspect may escape, or harm may come to themselves or others

  • Exclusionary rule does not apply if there is a knock notice violation

FOURTH AMENDMENT: Arrests WITHOUT a warrant - Police may arrest for a felony without a warrant IF:

• Reasonable belief by officer that felony committed AND

• Suspect in fact committed it

FOURTH AMENDMENT: True or false: police violated the Fourth Amendment by entering the suspect's home without an arrest warrant, the suspect's later statement at the police station did not have to be thrown out because the police already had probable cause to arrest him.

TRUE because once suspect was in lawful custody via probable cause, his voluntary statement later given was not the product of the illegal entry itself and thus admissible.

FOURTH AMENDMENT: What are the requirements for police to make an arrest for a misdemeanor WITHOUT a warrant?

• Arrest may be made only is misdemeanor committed in presence of the office AND

• Within 48 hours of arrest, judge MUST conclude there is PC of a crime sufficient to allow the arrest.

FOURTH AMENDMENT: SEIZURE OF EVIDENCE: What must you ask yourself if you encounter a seizure of evidence situation?

• Did PROBABLE CAUSE EXIST FOR THE SEIZURE?

  • Note: Unopened luggage temporarily detained to investigate for possible drugs is OK with reasonable suspicion, but they cannot hold the luggage for too long (90 minutes) without PROBABLE CAUSE.

FOURTH AMENDMENT: THE EXCLUSIONARY RULE - Define

• EVIDENCE obtained by illegal search or seizure

• NOT admissible in criminal proceeding