General Fourth Amendment Principles

Standard

• Beyond reasonable doubt: firm belief in D’s guilt

• Probable cause: reasonable belief that a crime was committed or evidence will be found

• Reasonable suspicion: reasonable basis for suspecting criminal activity

Standing

A defendant must have standing to assert a claim of a Fourth Amendment violation. This requires proof that the defendant himself has been seized or had a reasonable expectation of privacy regarding the place searched or the item seized.

Exclusionary Rule

The exclusionary rule prevents the introduction of unlawfully seized evidence at a trial against the defendant. However, it does not apply in the following circumstances:

• Federal habeas corpus review

• Grand jury proceedings

• Preliminary proceedings

• Bail proceedings

• Sentencing proceedings

• Proceedings to revoke parole

• Impeaching the defendant

• Civil proceedings

The judge decides whether evidence should be suppressed. On appeal, the judge’s findings of fact are reviewed for clear error, while the judge’s findings of law are reviewed de novo.

Government Conduct

Evidence will be excluded under the Fourth Amendment only if it was discovered by a government actor— including publicly funded police, private persons directed by the police, or deputized private police.

Seizure

A Fourth Amendment seizure occurs when police, by means of physical force or a show of authority, intend to terminate or restrain a person’s freedom of movement. If the police’s intent to restrain is ambiguous, or if the defendant passively submitted to the police’s show of authority, then a seizure occurs only if a reasonable innocent person would not feel free to leave under the totality of the circumstances. This is an objective test.

Stop and Frisk

A stop is a temporary, investigative detention of a person. A stop constitutes a Fourth Amendment seizure if an officer—by means of physical force or a show of authority (e.g., an order to stop)—has restrained a person’s liberty.

Arrest warrants

may be issued by a detached, neutral magistrate upon a finding of probable cause that (1) a crime was committed and (2) the person identified in the warrant was involved. The warrant must describe with particularity both the defendant and the crime committed. However, a deficient warrant does not invalidate an arrest made pursuant to the warrant so long as probable cause exists. That is because a warrant is not required for a proper arrest based on probable cause.

Search warrants

may also be issued by a detached, neutral magistrate upon a finding of probable cause, i.e., a reasonable belief that contraband will be found.

The warrant must (1) be supported by oath or affidavit and (2) describe with particularity the places to be searched and the items to be seized.

Facts supporting probable cause include:

• An officer’s personal observations

• Information obtained from a reliable, known informant or verified unknown informant

• Evidence seized during a stop based on reasonable suspicion, seized during a consensual search, or discovered in plain view

“knock and announce” rule

Under the “knock and announce” rule, police must generally announce a purpose when executing a warrant (unless state law allows an exception for exigent circumstances). However, a failure to do so does not trigger the exclusionary rule.

Warrantless Arrests

An invalid arrest alone is not a defense to the crime charged, but it will affect the admissibility of evidence seized pursuant to the arrest.

• Note that an arrest warrant is not needed when the arrest is made in a public place or the arrestee committed a crime in the arresting party’s presence. To determine whether a crime has been committed to justify a warrantless arrest, the question is whether an officer could conclude—considering all of the surrounding circumstances—that there is a substantial chance that criminal activity occurred.

Reasonable Expectation of Privacy or Physical Intrusion on Private Area

A search is unreasonable if the government invades a place protected by a reasonable expectation of privacy or physically intrudes upon a constitutionally protected area to gather information.

Overview of Common Searches

Home, private room, office:

• Constitutionally protected areas

• Use of a drug-sniffing dog is a search if it physically intrudes onto constitutionally protected property

Luggage

• Reasonable expectation of privacy for invasive searches but not for canine sniffs

Automobile

• Reasonable suspicion of a legal violation is needed to stop

• Probable cause is needed for a pretextual stop arising from a traffic violation to investigate a different legal violation

• No reasonable suspicion is required for a valid checkpoin

Technological devices

• Attaching a tracking device to a person without consent or physically intruding on a suspect’s property to install one is a search

• Collecting cell-site location information from a carrier is a search

• Using sense-enhancing devices that are not used by the general public is a search

Overview of Common Searches - no reasonable expectation of privacy

• Abandoned property

• Open area

• Odor from car

Exceptions to Search Warrant Requirement

Remember the following exceptions with the mnemonic SAD SPACES:

• Search incident to arrest, Administrative search, Stop and frisk, Plain view, Automobile exception, Consent, Exigent circumstances, Special government purpose

Search incident to a lawful arrest

No warrant is required so long as the search is reasonable in scope.

Wingspan search

The arrestee and the immediate surrounding area (i.e., the arrestee’s wingspan) may be searched contemporaneously with the arrest. This includes pockets and containers, but not cell phones or laptops unless exigent circumstances exist.

Search of a home:

A protective sweep is permissible, even without probable cause or reasonable suspicion. The search may include places in the home immediately adjoining the place of arrest from which an attack could be launched and in which a person might be hiding (e.g., adjacent rooms, closets, showers). The search may be broadened if there is reasonable suspicion that confederates are hiding beyond these immediately adjacent areas.

Vehicle search:

A vehicle search is permitted if (1) the arrestee is within reaching distance of the passenger compartment and could reach possible weapons or evidence during the search or (2) it is reasonable that evidence of the offense of arrest might be in the vehicle.

Inventory searches

Such searches may be conducted without a warrant when the police arrest a driver and impound the car.

ADministrative searches

• A warrant is generally required for nonconsensual fire, health, or safety inspections of residential or private commercial property.

• However, a warrant is not required for searches used to ensure compliance with administrative regulations, e.g., searches of students by public school officials, businesses in closely regulated industries, travelers and their belongings at international borders, and cars at vehicle checkpoints and roadblocks.

Stop and frisk:

Police may conduct warrantless stops and frisks.

Stop (Terry stop):

A limited and temporary intrusion on a person’s freedom of movement is justified if, under the totality of the circumstances, there is reasonable suspicion based on articulable facts that the detainee is involved in illegal activity

Frisk

An officer without probable cause may pat down a person’s outer clothing if the officer has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for safety.

Frisk - Under the “plain feel” exception:

Under the “plain feel” exception, if an officer conducting a valid frisk feels an object whose identity is immediately obvious (e.g., the officer has probable cause to believe that the object is contraband), then the object can be seized.

Limitations

An officer must use the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short time. But if the officer’s reasonable suspicion grows into probable cause, then the officer can make an arrest and conduct a full search.

Plain-view doctrine

The police may seize items in public view without a warrant because there is no reasonable expectation of privacy in those items. The police may seize items in private view without a warrant when (1) the police are on the premises for lawful purposes, (2) the criminal nature of the items is immediately apparent, and (3) the officer has lawful access to the items.

Automobile exception

The police may search any part of a car if there is probable cause to believe that it contains contraband or evidence of a crime. However, this exception does not permit the warrantless entry of a home or its curtilage to search a vehicle located therein.

Consent

Voluntary consent can eliminate the need for probable cause or a warrant.

Voluntary consent

Consent is voluntary if—based on the totality of the circumstances—it is given without the threat of harm, compulsion, or the false assertion of lawful authority. A government agent may pretend to be someone else to obtain voluntary consent.

Third-party consent

A third party can consent to the search of a suspect’s property only if (1) the third party has an agency relationship with the suspect or (2) the suspect assumed the risk of the search by giving rights to the third party with respect to the property.

Exigent circumstances

The government must demonstrate probable cause and the existence of exigent circumstances, based on the totality of the circumstances. Police may not create exigency by threats or conduct that violates the Fourth Amendment. Exigent circumstances include:

Hot pursuit

Police in pursuit of a suspect can seize “mere evidence” (i.e., evidence that is not the fruit or instrumentality of a crime) from a private building without a warrant if there is probable cause to believe that the suspect committed a felony. No warrant is needed if there is probable cause to believe that the suspect committed a misdemeanor and the totality of the circumstances shows an emergency.

Emergency

An emergency arises when there is reasonable apprehension that a delay in getting a warrant would result in an immediate (1) danger of destruction of evidence, (2) threat to the safety of the police or public, or (3) threat that a suspect will flee before a warrant can be obtained.

Special government purpose (i.e., special-needs searches)

The state interest must be a real, current, and vital problem that can be effectively addressed through the proposed search (e.g., drug testing railroad employees involved in an accident or student athletes during the athletic season). The need must be balanced against the privacy interests at stake and the character of the intrusion

Exclusionary Rule

Under the “fruit of the poisonous tree” doctrine, the exclusionary rule applies to evidence initially seized as a result of government illegality (i.e., primary evidence) as well as secondary derivative evidence resulting from the primary taint.

There are several exceptions to the exclusionary rule that apply to primary and derivative evidence

• Inevitable-discovery rule

• Independent-source doctrine

• Attenuation principle

• Good-faith exception

Inevitable-discovery rule

Evidence is admissible if it would have been discovered in the same condition through lawful means.

Independent-source doctrine

Evidence is admissible when it was discovered in part by an independent source unrelated to the tainted evidence.

Attenuation principle

Evidence is admissible when the passage of time and/or intervening events purge the primary taint.

Good-faith exception

Evidence is admissible when the police relied in objective good faith on a facially valid warrant that was later found invalid or an existing law that was later found unconstitutional.

However, this Good-faith exception does not apply if:

○ No reasonable officer would rely on the affidavit underlying the warrant

○ The warrant was defective on its face

○ The warrant was obtained by fraud

○ The magistrate wholly abandoned his judicial role or

○ The warrant was improperly executed.

Isolated police negligence

Isolated police negligence is not enough to trigger the exclusionary rule. The police conduct must have been sufficiently deliberate so that excluding the evidence can meaningfully deter it.

Knock and announce

The exclusionary rule does not apply when the police merely failed to knock and announce their presence

In-court identification

The exclusionary rule does not apply to a witness’s in-court identification of a defendant because it is not the fruit of an unlawful search or seizure.

Error is harmless

A court can refuse to order a new trial based on an exclusionary-rule violation if the error is harmless beyond a reasonable doubt (i.e., the illegal evidence did not contribute to the result).