Con Law 2

Trespass

to qualify as a search, law enforcement officers had to physically invade a constitutionally protected area. These areas included persons, houses, papers, effects

Privacy:

*  Did the person exhibit an actual personal expectation of privacy (subjective)? And, (2) Is society prepared to recognize the privacy as reasonable (objective)? If both of these requirements have been met, and the government has taken an action which violates this "expectation of privacy," then the government's action has violated the individual's Fourth Amendment rights.

what is third party doctrine

whenever we knowingly reveal our incriminating secrets, we assume the risk that our false friends will use them against us in criminal cases

the Fourth Amendment **does not** prohibit obtaining information revealed to a third party and conveyed by the third party to Government authorities

Thermal Imaging

Kyllo v. United States (2001), page 93 of text

It is a search because the the government used a device that is not a in general public use to explore a home that would have been unknowable without physical intrusion

* GPS Tracking

United States v. Jones (2012), page 96 of text

Yes. "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search.' They physically intruded on constitutionally protected area

Email

U.S. v. Warshak (2010), page 100 of text

Yes. "\[W\]e hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP. The government may not compel a commercial ISP to turn over the contents of a subscriber's email without first obtaining a warrant based on probable cause."

Smartphones and Text Messaging

State v. Patino (2012), page 104 of text

A person does have reasonable expectation of privacy in text message. In so holding, the Court emphasizes that in viewing the contents of people's text messages, just as with GPS monitoring, law enforcement is able to obtain 'a wealth of detail about \[a person's\] familial, political, professional, religious, and sexual associations."

Discuss the three-step process used in Fourth Amendment analyses.

Was the law enforcement action a search or a seizure? \[If it wasn’t, the Fourth Amendment isn’t involved, and the analysis ends.\]

If the action was a search or a seizure, was it reasonable? \[If it was, the inquiry ends because the Fourth Amendment only bans unreasonable searches and seizures.\]

If the action was an unreasonable search, does the Fourth Amendment ban its use as evidence?

Does unprovoked flight + high crime area = reasonable suspicion? Explain.

Illinois v. Wardlow (2000), page 144 of text

This case deals with the category of location and asks, “\[d\]oes sudden unprovoked flight in a high-drug area amount to reasonable suspicion?

Yes. “Headlong flight-wherever it occurs-is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”

Alabama Vs White

Yes, when police can corroborate certain details of the tip (Court called this a “close case.”)

Florida v. J.L

No, when tip lacks moderate indicia of reliability to justify the stop. Here, tip only reliable in the limited sense that it could help the police correctly identify the person the tipster meant to accuse.

Prado Navarette v. California (2014)

Did an anonymous 911 call reporting a description and license plate of a pick-up truck amount to reasonable suspicion?

Yes. “Like White, this is a “close case.” As in that case, the indicia of the 911 caller’s reliability here are stronger than those in J.L., where we held that a bare-bones tip was unreliable.

Explain the reason for reduced individual Fourth Amendment protections at international borders.

Lesser expectation of privacy at borders

Fourth Amendment’s balance of reasonableness qualitatively different at the international border than in the interior.

Balance is struck much more favorable to government at the border.

Why is it reasonable to remove a passenger from a stopped vehicle when there is no reasonable suspicion that the passenger may be involved in a crime?

Passengers in the vehicle can also be ordered to get out (Maryland v. Wilson \[1997\], page 161 of text

To further protect officer safety, officers may also frisk drivers and passengers of stopped vehicles (Arizona v.Johnson-next slide).

Arizona v. Johnson (2009), at page 166 of text

Was a frisk of a passenger after he received a traffic citation reasonable?

Yes. “…officers who conduct routine traffic stops may perform a patdown of the driver and any passengers upon reasonable suspicion that they may be armed and dangerous.”

Characteristics of Custodial Arrest 

1. The police officer says to the suspect, “You’re under arrest.”
2. The suspect is put into a squad car.
3. The suspect is taken to the police station.
4. The suspect is photographed, booked, and fingerprinted.
5. The suspect is searched.
6. The suspect is locked up either at the police station or in a jail cell.
7. The suspect is interrogated.
8. The suspect may be put into a lineup.

arrests difference with stops

* Duration: Stops are measured in minutes; arrests last MUCH longer.
* Location: Stops begin and end in much the same location; arrested individuals are taken to different locations.
* Record: Most stops are not “written up.” Arrests produce written documents that become part of a person’s record.

why is arrest a zone

* spectrum of invasions.
* Custodial arrests occur when a person is officially taken into custody and held to answer criminal charges.

probable cause

requires that an officer, in the light of her training and experience, knows enough facts and circumstances to reasonably believe that a crime has been, is being, or is about to be committed and the person arrested has committed, is committing, or is about to commit the crime

reasonable suspicion

\n the totality of articulable facts and circumstances that would lead an officer, in the light of her training, to suspect that crime may be afoot

Neutral magistrate

A disinterested judge to decide whether there is probable  cause.

affidavit

Made by someone (usually the law enforcement officer) of the facts/circumstances amounting to probable cause.

name of the person arrested

* Has to identify, specifically, who is to be arrested.

What is required to satisfy the Fourth Amendment reasonableness requirement regarding arrests?

The Fourth Amendment requires that arrests be supported by probable cause.

three exceptions to knock and announce

To prevent violence

To prevent the destruction of evidence

To prevent suspects from escaping

Explain how the “digital age” has impacted search warrants and criminal law enforcement. Provide practical examples of how these issues might impact criminal law enforcement.

In the Matter of the Search of iPhone 4 and Four Other Seized Electronic Devices

FBI applied for six search and seizure warrants to Federal District Court. Magistrate Judge John M. Facciola denied the applications for, inter alia (means “among other reasons”) that they were not supported by probable cause. Magistrate Judge Facciola found the search warrants to be overbroad and a risk to government overseizure.

Note: Government can resubmit revised search warrants to Magistrate Judge Facciola that addresses the issues he raised in his written decision denying the search warrants.

Describe a search incident to a pretext arrest, and explain its significance

If an officer has a hunch that they can find evidence of a crime on a person, so long as they have probable cause to arrest, even for a minor offense, the arrest is valid, as in the search incident to the pretextual arrest.

Identify four emergence searches, and describe why each falls under the exception to the warrant requirement.

To officers’ safety (justification for frisks and pat-downs)

That evidence may be destroyed

That fleeing felons might escape

That people in the community are in immediate danger

Give an example of a person who can consent to a search for someone else. Give an example of a person who can consent to a search for someone else.

There’s both a subjective and an objective rule to decide whether one person can consent to search for someone else.

Actual authority (objective) third party consent

Apparent authority (subjective) third party consent

examples: 

That the consenting party could permit the search “in his own right.”

That the defendant had “assumed the risk” that a co-occupant might permit a search (LaFave and others 2009, 285).

1. Why are inventory searches reasonable without warrants or probable cause? Identify the special needs satisfied by inventory searches, and what substitutes for probable cause as the objective basis for inventory searches.

Inventory searches involve examining and listing peoples’ personal property and containers held in government custody. 

A container is anything used to hold peoples’ stuff.

The containers are visually inspected, and items within are listed before being put away for safekeeping.  

The reasonableness of an inventory search depends on satisfying two elements:

Balancing interests

Protection of owner’s stuff while in police custody

Protection of law enforcement against lawsuits for loss, destruction, or theft of owner’s stuff

Protection of law enforcement against dangerous items/contraband that may be hidden in owner’s stuff 

Objective basis

Based on routine procedures, not probable cause or reasonable suspicion (routine-procedure limit)

Still allows for discretion

identify four characteristics all special needs searches have in common

They’re directed at people in general, not specific criminal suspects or defendants.

They can result in criminal prosecution and conviction.

They don’t require warrants or probable cause.

Their reasonableness depends on balancing special government needs against invasions of individual privacy. 

Identify the special need for searches of prisoners and prisoners’ expectations of privacy.

* People entering or within areas of correctional supervision may be searched without warrants or probable cause—and sometimes without any individualized suspicion.
* Includes inmates, detainees, visitors, workers, probationers, parolees…
* Such people have a reduced expectation or privacy.
* The special need to maintain safety, security, and discipline within correctional facilities outweighs the intrusion. 

Hudson v. Palmer

 “Imprisonment carries with it the loss of many significant rights.”

Full-body, strip, and body-cavity searches may be done without probable cause or a warrant.

Padgett v. Donald

Incarcerated felons can be required to provide a sample of DNA for analysis and storage in a data bank.

Why don’t searches of probationers and parolees require warrants or probable cause?

Probationers and parolees have diminished Fourth Amendment rights because:

* Custody. Even though they are not incarcerated, they are still in state custody.
* Consent. They have agreed in a “contract” for their release to searches/seizures.
* Balancing. Protecting society against recidivism outweighs limited invasion of their privacy.

Probationers and parolees have diminished Fourth Amendment rights.

Some courts see conditional release as a privilege, not a right—a conditional liberty.

Searches of probationers’ homes only require reasonable suspicion.

Parolees’ homes can be searched without warrants or individualized reasonable suspicion.

Parolees have fewer expectations of privacy than probationers.

Why are searches of high school students reasonable without warrants or probable cause?

Minors lack some of the fundamental rights enjoyed by adults, including the right to be left alone by the government. This is especially true while they’re in school.

4th amendment

The right of the people to be secure in their persons houses, papers and effects, against **unreasonable searches and seizures** shall not be violated and no warrants shall issue, but upon **probable cause**, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

terry vs Ohio

Stop and frisks are “minor” searches and seizures and require fewer facts to back them up than they would need to arrest and search.

Police can briefly “freeze” a situation to investigate criminal activity that “may be afoot.”

Katz vs United States

* Whether the individual has an expectation of privacy that society is prepared to recognize as reasonable.

Rodriguez Vs. US

Does Fourth Amendment allow police to conduct a dog sniff **after completion of a traffic stop?**

No. “We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.  A seizure is justified only by a police-observed traffic violation…becomes unlawful **if it is prolonged beyond the time reasonably required to complete the issuing ticket.”**

Illinois vs Coballes

* Was the dog sniff a search?
* No. “. . . The use of a well-trained narcotics dog-one that does not expose noncontraband items that otherwise would remain hidden from public view during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of Caballes’s car while he was lawfully seized for a traffic violation. Any intrusion on Coballes’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.”

Collins vs Virginia

* SCOTUS Reversed and held that police needed a search warrant because the officer physically intruded on the curtilage- “the area immediately surrounding and associated with the home.”

United States vs Lichtenberger

Was the Search of His Laptop, Phone and Flash Drive a Private Search?

No. “In light of the information available at the time the search was conducted, the strong privacy interests at stake, and the absence of threat to government interests, we conclude that Officer Huston’s warrantless review of Lichtenberg’s laptop exceeded the scope of the private search Holmes had conducted earlier that day,  and therefore  violated Lichtenberger’s Fourth Amendment rights to be free from unreasonable search and seizure.”

If the 4th Amendment applies three questions must be addressed

Was the law enforcement action a search or a seizure?

If the action was a search or a seizure, was it reasonable?

If the action was an unreasonable search, does the Fourth Amendment ban its use as evidence?

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fourth Amendment stops

are brief detentions that allow police to briefly freeze and investigate suspicious situations. 

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fourth Amendment frisks

Are “once-over-lightly” pat downs of the outer clothing done to protect officers by taking away suspects’ weapons.

reasonableness clause

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.”

Warrant clause

. . . and no warrants shall issue but upon probable cause, supported by oath or affirmation.

Balancing element

The need to search and/or seize outweighs the invasion of liberty and privacy rights of the individuals

Objective Basis

There are enough facts and circumstances to back up the search and/or seizure.

Adams bs Williams

* Was the stop and frisk reasonable?
* Location- high crime area
* Time of day- 2:00 a.m.
* Officer received a tip from a reliable informant 

Note: Two other important points: (1) applied *Terry*  to **possessory offenses** and (2) reasonable suspicion could be based on **hearsay**.

Hiibel vs Sixth Judicial Court of Nevada

Yes. Statutes that require a suspect to disclose his/her name to an officer when reasonable suspicion exists are constitutional b/c questions concerning a suspect’s identity are a routine and accepted part of many *Terry* stops (Normally, suspect not required to answer questions during *Terry* stop).

direct information

facts and circumstances officers learn firsthand

hearsay information facts and circumstances officers learn secondhand from victims witnesses other police officers

Hearsay information

facts and circumstances officers learn secondhand from victims, witnesses, other police officers, and anonymous, professional, or paid informants.

individual Suspicion

Consists of facts and circumstances that point to specific individuals.

categorical suspicion

Refers to suspicion that falls on suspects because they fit into a broad category of people such as a particular race or ethnicity.

Arizona vs Johnson

* Was a frisk of a passenger after he received a traffic citation reasonable?
* Yes. “…officers who conduct routine traffic stops may perform a patdown of the driver and any passengers upon reasonable suspicion that they may be armed and dangerous.”

City of Indianapolis v. Edmond (2000),

Yes. Indianapolis drug interdiction checkpoint in this case violated Fourth Amendment because its primary purpose was to detect evidence of ordinary criminal wrongdoing. This differs from problems of policing the border or the necessity of ensuring roadway safety

Us vs Montoya de Hernandez

* Is the 16-hour detention of a suspected “balloon swallower” a reasonable stop?
* Yes, because it occurred at international border, where the Fourth Amendment balance of interests leans heavily to the Government…

Illinois v. Lidster (2004),

Was the Hit-and-Run Information Checkpoint Reasonable?

Yes. Primary “law enforcement purpose of checkpoint was *not* to determine whether vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all liklihood committed by others.

Duration

1.  Stops are measured in minutes; arrests last MUCH longer.

location

1.  Stops begin and end in much the same location; arrested individuals are taken to different locations.

record

1. Most stops are not “written up.” Arrests produce written documents that become part of a person’s record.

custodial arrest

occur when a person is officially taken into custody and held to answer criminal charges.

object basis

the arrest was backed up by probable cause

manner of arrest

the way the arrest was made was reasonable

Draper vs US

* Does an informant’s corroborated information amount to probable cause to arrest?
* Yes. “In dealing with probable cause… as the very name implies, we deal with probabilities. These are not technical; they are the factual considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause exists where “the facts and circumstances within their (the arresting officers’) knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed

Payton vs New York

* Are home entries to arrest suspects reasonable without arrest warrants?
* No. “… To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present.”

Lange Vs California

* Does hot pursuit of a misdemeanant automatically create the needed exigent circumstances to justify warrantless entry into a home?
* No. “A great many misdemeanor pursuits involve exigencies allowing warrantless entry. But whether a given one does so turns on the particular facts of the case.”

Tennesse vs Garner

* Is shooting a fleeing suspected felon an unreasonable seizure? (Example of deadly force to arrest)
* Yes. “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”

Graham vs Connor

* Was the Police Use of (Nondeadly) Force Excessive?
* Maybe in this case it was.  However, the Supreme Court remanded the case to the Federal District (Trial) Court to apply a new standard for determining whether law enforcement used excessive force: “We … hold that all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard rather than under a “substantive due process” approach.”

Kuhna vs City of Minnetonka

* Was the bite-hold method excessive force?
* Yes. “We conclude that a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender…The presence or absence of a warning is a critical fact in virtually every excessive force case involving a police dog.”

Estate of Ronald Armstrong vs Village of Pinehurst

* Did They Use Excessive Force While Serving an Involuntary Commitment Order?
* A jury or judge, if a jury is waived, will determine if Pinehurst police officers are civially liable for using excessive force by Tasering Ronald Armstrong under these circumstances.

Atwater vs City of Lago Vista

* Was the custodial arrest for violating the Fine-Only Seat Belt Law Reasonable?
* Yes. “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”

***Hedgepeth v. Washington Metro Area Transit, et. al***

* Was the custodial arrest reasonable?
* Yes. Court based its decision on Atwater.

***Wilson v. Arkansas***

* Was the “No-Knock” Entry an Unreasonable Search?
* Perhaps. “… We hold that in some circumstances an officer’s unannounced entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search and seizure.

***Chimel v. California*** (1969)

* Was the Search Incident to the Arrest?
* No. “There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”- construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs- or for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant…”

***New York v. Belton***

* Is Searching a Jacket on a Car’s Back Seat Incident to Arrest?
* Yes. “… we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, **search the passenger compartment of that automobile.** It follows from this conclusion that police may also examine the contents of any containers found inside the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within reach.”

***Arizona v. Gant***

… we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle… we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”

***Knowles v. Iowa***

* Was the Automatic Search Incident to Citation Reasonable?
* No. “In Robinson, we held that the authority to conduct a full field search as incident to arrest was a bright-line rule,” which was based on the concern for officer safety and destruction or loss of evidence, but which did not depend on every case upon the existence of either concern. Here we are asked to extend that “bright-line rule” to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so.”

***Whren v. United States*** (1996)

* Was the Search Incident to a Pre-text Arrest Reasonable?
* Yes. “Here the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct.”

Consent searches

are searches in which people give officers permission to search them and/or their personal belongings without either warrants or probable cause

***Schneckloth v. Bustamonte*** (1973)

* Was the Consent Voluntary?
* Yes. “We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth Amendment requires that it demonstrate that the consent was in fact voluntarily given, and not the result of … coercion … Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of the right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.”

***U.S. v. Rodney*** (1992)

* Did Dylan Rodney Consent to a Search of his Crotch?
* Yes. … We hold only that Rodney’s generalized consent authorized the kind of “traditional frisk search” undertaken here, and we express no view on the questions involving… consensual searches of a more intrusive nature… We conclude that Rodney voluntarily consented to a search of his body for drugs, which encompassed the frisk undertaken here.”

***U.S. v. Blake*** (1989)

* Did Blake Consent to a Search of His Crotch?
* Defendants clearly did not consent to the intimate search of their persons that was conducted in a public area of the Fort Lauderdale Airport. The request by the officers to search defendants’ “person” was ambiguous at best and its is not clear whether Defendants understood exactly what was entailed by the phrase “body search.”

***Illinois v. Rodriguez*** (1990)

* Did She Have the Authority to Consent?
* Perhaps. “… determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment… warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.”

***Georgia v. Randolph*** (2006)

Police can not by-pass the target to obtain consent from another person when target is present.

***California v. Acevedo*** (1991)

* Can police search a container in an automobile when there is probable cause to search the vehicle?
* Yes. 

***Wyoming v. Houghton*** (1999)

* Was Her Purse Part of the Vehicle Exception?
* Yes. “We hold that police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.”

***South Dakota v. Opperman*** (1976)

* Was the Inventory a Reasonable Search?
* Yes. “We conclude that following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not “unreasonable” under the Fourth Amendment.”

***Florence v. Board of Freeholders of the County of Burlington et al.*** (2012)

* Were the searches Reasonable to further “special needs?
* Yes. Burlington County’s strip search procedures struck a reasonable balance between inmate privacy and the needs of the institution.

Custody

1. Even though they are not incarcerated, they are still in state custody.

Consent

They have agreed in a “contract” for their release to searches/seizures.

Balancing

Protecting society against recidivism outweighs limited invasion of their privacy.

***Samson v. California*** (2006)

* Was the Suspicionless Search of the Parolee’s Home Reasonable?
* Yes. “Examining the totality of the circumstances pertaining to petitioner’s status as a parolee, an established variation on imprisonment, including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as reasonable.”

***Norris v. Premier Integrity Solutions, Inc.***

* Was the Drug Testing Sample under “Direct Observation” an Unreasonable Search?
* No. “Given \[Norris’s\] diminished expectation of privacy based upon alleged prior misconduct and circumstances and the governments compelling interest in ensuring the validity of the testing, the Court finds that the direct observation method of urine collection was reasonable despite its highly intrusive nature.”

***State v. Ellis***

Was the Dormitory Room Search Reasonable?

* No. “We conclude that by entering Ellis’s dormitory room without a warrant or an applicable recognized exception to the warrant requirement, and by further seizing and removing from that room contraband discovered by the Resident Assistants during their private search of that room, campus police violated Ellis’s Fourth Amendment rights.”

***Ferguson and others v. City of Charleston and others*** (2001)

* Were the Urine Tests Unreasonable Searches?
* Yes. “In this case, it is clear from the record that an initial and continuing focus of the policy was on the arrest and prosecution of drug-abusing mothers.”

Veronia School District v. Acton

* *It is reasonable for a school to randomly drug test students who voluntarily participate in its athletic programs.*

*Board of Education v. Earls* (2002)

* *Expanded the reasonableness of drug testing to all students involved in all school  activities.*

Constitutionally protected areas \n

individuals and private property named in the Fourth Amendment, including houses, papers, and effects