Chapter 15

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protects individuals from unreasonable searches and seizures of their homes, papers, and effects.

The second phrase, known as the warrant clause

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The Fourth Amendment

Hint 1

Note that only persons, houses, papers, and effects are protected by the amendment

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a search was defined by the Court as a government intrusion into an area or interest where a person has a reasonable expectation of privacy and the public accepts that expectation

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Katz vs US

(Privacy approach)

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is based on the rule that defendants generally must assert their own legal rights and interests and cannot rest their claim to relief on the legal rights or interests of another person

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standing

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The Court stated that the “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”

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Standing

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“Probable cause exists where the facts and circumstances within the 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.”

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Carroll v. United States, 267 U.S. 132 (1925):

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When a defendant alleges that the police made deliberate false statements or the police were reckless regarding the use of information used to establish probable cause, the trial court should hold a___________ _______________.

A___________ ____________ looks at the issue of police misconduct in production of the affidavit used to support the finding of probable cause

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Franks hearing

Hint 6

If the information used by the police in the affidavit was false, but the police acted in an honest and reasonable manner and did not know that the information was false, the inaccuracy will not void the warrant.

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The Federal Rule of Criminal Procedure 41(h) defines “daytime”

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6:00 am to 10:00 pm according to local time

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Generally, officers executing a search warrant must announce their authority and purpose before entering a dwelling without consent (18 U.S.C. sec. 3109). There is, however, an exception to this “knock-purpose” rule

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when exigent circumstances exist

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Police may enter without knocking

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“when the officers reasonably believe the persons to be apprehended might destroy evidence during a delay in police entry”

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The police may not use _____________ _________ in conducting the search.

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extraordinary force

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warrant that authorizes covert and surreptitious entry without any provisions for post-search notification to the residents is

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unconstitutional [United States v. Freitas

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Eavesdropping

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Intercepted conversations on a cordless or cell phone do not invade the reasonable expectation of privacy and no warrant is needed [United States v. Mathis

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Eavesdropping

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The Fourth Amendment does not apply to telephone company billing records

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Eavesdropping

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A pen register that records all the numbers dialed from a particular telephone is not a search within the meaning of the Fourth Amendment [Smith v. Maryland

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The two most frequent situations in which the police may search without a warrant are

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vehicle searches and where exigent circumstances prevent the police from having time to obtain a search warrant.

Hint 15

Note: In both cases the police will need probable cause to search.

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The factors that a court will consider in determining the existence of exigent circumstances include the following:

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It must be impractical to obtain a warrant.

The emergency that justifies the warrantless search also acts to limits the scope of the search.

All exigency searches need probable cause.

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the police were lawfully on the premises and noticed new stereo equipment. An officer moved the equipment so that he could look at the serial number. It was later determined that the equipment had been stolen. The court held that the plain view doctrine did not apply and that the search was invalid. The court noted that until the officer moved the equipment, the serial number was not in plain view and that looking at the serial number was an illegal search because the officer had no probable cause to believe that the equipment had been stolen

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In Arizona v. Hicks, 480 U.S. 321 (1987),

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During CONSENT

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Even if officers have in their possession a search warrant, the officers should first ask permission to search. If permission is given, then the legality of the warrant is immaterial. If permission is denied, then the officers may search pursuant to the warrant

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Prior to Terry v. Ohio, 392 U.S. 1 (1968), any restraint of an individual amounting to a seizure for the purposes of the Fourth Amendment was invalid unless justified by ___________________

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probable cause

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The U.S. Supreme Court in Terry created a limited exception to this general rule: certain seizures are justifiable under the Fourth Amendment if there is_______________________ that a person has committed or is about to commit a crime. In that case, a stop and a frisk for weapons were found unexceptionable

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articulable suspicion

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Terry vs Ohio

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The Court confined its holding to situations in which the officer believes that “the persons with whom he is dealing may be armed and presently dangerous” and “fears for his own or others’ safety.”

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Pennsylvania v Mimms

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The Court held that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.

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An arrest requires four essential elements:

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1. Intention to arrest

2. Authority to arrest

3. Seizure and detention-Mere words do not constitute an arrest. Merely telling a person “you are under arrest” is not an arrest unless it is accompanied by an actual seizure or by submission of the individual to the officer’s will and control.

4. An understanding by arrestees that they are being arrested

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Arrests

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In most states, an officer may arrest a person without a warrant whenever the officer has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has been committed by the defendant or anyone

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Arrests

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A felony need not have been committed within the presence of the officer

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Arrests

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An officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed a misdemeanor in the officer’s presence

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Arrests

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Absent of statutory authority, an officer may not arrest without a warrant for a misdemeanor not committed in the officer’s presence

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Arrests

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Most states give officers authority to arrest for traffic offenses that occurred out of the presence of the officer

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Arrests

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Most states give officers authority to arrest for traffic offenses that occurred out of the presence of the officer

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majority of civil litigation against police agencies and individual officers is based on

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Violations of constitutional rights

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For the first ninety years, there was relatively little action under Section, 1983. It appears that there were only____ reported cases involving law enforcement agencies and persons during its first ____ years.

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six

Ninety

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After the____________ case was published, the number of court filings increased significantly. It was estimated that in the calendar year______, over_______ court actions were filed alleging civil liability under Section, 1983

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Monroe v Pape

2005

7,500

Hint 32

in conducting an illegal search, the officer can be sued in federal court by alleging that the officer deprived the injured party of that individual’s constitutional rights

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The most common type of immunity is______________, which protects officials from liability when reasonable officials in the defendant’s position would not have understood their actions to violate a person’s constitutional rights [Harlow v. Fitzgerald, 457 U.S. 800 (1982)].

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qualified immunity

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More limited in application, but certainly broader in protection, is_____________________, which the U.S. Supreme Court has held applies to the performance of certain functions when those functions are integral to the functioning of our adversarial judicial system [Briscoe v. LaHue, 460 U.S. 325 (1983)]

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absolute immunity

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Civil liability

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The Court has carefully restricted absolute immunity because it protects an official from liability even when the official acted with knowledge of the constitutional violation. Testimony at adversarial judicial proceedings is the most historically grounded of these functions which merit absolute immunity. In restricting absolute immunity, the Court restricted it to only those situations that advance the furtherance of our adversarial legal system.

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Those functions more “intimately associated with the judicial phase of the criminal process” are more likely to merit careful consideration for____________. In contrast, those functions more “investigative” in nature—searching for “clues and corroboration”—are more removed from the judicial process and merit only _____________.

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absolute immunity

qualified immunity

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A police officer is immune from a Section, 1983 civil action for his testimony, even if false, before the_____________.

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grand jury

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Police officers are not entitled to qualified immunity in a Section, 1983 claim based on an officer’s_________________ in an affidavit submitted to a magistrate judge for arrest warrant at warrant hearing [United States v. Martin, 615 F.2d 318 (5th Cir. 1980)]

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false statements

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An arrest without probable cause is unconstitutional, but officers who make such an arrest are entitled to qualified immunity if there was_______________ for the arrest

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arguable probable cause

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Arrests

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Other common exceptions include misdemeanors committed on school property and crimes committed by juveniles.

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Other common exceptions include

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misdemeanors committed on school property and crimes committed by juveniles.

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Arrests

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A state arrest warrant is valid only within the jurisdiction of the state

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_________________is a judicially created remedy that originated as a means to protect the Fourth Amendment right of citizens to be free from unreasonable searches and seizures.

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The exclusionary rule

*deter police misconduct

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There are at least five exceptions to the exclusionary rule:.

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(1) good-faith exception

(2) purged taint exception

(3) independent source exception

(4) inevitable discovery exception

(5) impeachment of the defendant at trial

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Exclusionary Rule

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The U.S. Supreme Court has been more reluctant to apply the exclusionary rule to Miranda violations involving confessions and admissions, than to search and seizure issues.

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Exclusionary Rule Does not apply to

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noncriminal trial proceedings

grand jury proceedings

deportation hearings

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_____________________is used by the courts to suppress evidence that was discovered as the result of an illegal search or discovered because information obtained during an illegal search directed the police to the location or existence of other evidence

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The “fruit of the poisonous tree” doctrine

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Every person who, under the color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects or causes to be subjected any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law. . . .

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42 USC 1983

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police officer, department, or city may be subject to civil litigation in one of three situations:

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1. A civil action based on an intentional tort (intentional wrong doing)

2. A civil action based on negligence

3. A civil action based on an infringement of a constitutional rights

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the Supreme Court described the curtilage as the “area to which extends the intimate activity associated with the sanctity of a person’s home and the privacies of life.”

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United States v. Dunn

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The Constitution and laws of the United States do not guarantee an accused the right to Miranda warnings, they only guarantee the accused the right to be free from ______ ______________.

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self-incrimination

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U.S. Supreme Court in_________v_________, held that the key in determining if an officer’s use of force is appropriate is whether or not the force is reasonable in light of the facts and circumstances that are present.

The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20-20 vision of hindsight.

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Graham v. Connor, 490 U.S. 386 (1989)

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__________v_____________, the Court stated that: “We must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.” What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.

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Smith v. Freland 954 F.2d 343 (6th Cir. 1992)

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The use of deadly force during an arrest is governed by the U.S. Supreme Court decision in _____________v__________.

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Tennessee v. Garner, 471 U.S. 1 (1985). Fleeing felon.