Criminal Procedure

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The Fourth Amendment search and seizure clause reads:

Back 1

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

Front 2

The Fourth Amendment warrant clause reads:

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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.

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Fourth Amendment State Action Requirement

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Fourth Amendment only applies to actions by the government.

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Fourth Amendment actions by private persons

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Actions taken by private persons acting as government agents are also covered by the amendment, determined by the degree of government involvement in the situation and the totality of the circumstances.

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Fourth Amendment Scope of Extraterritorial Searches and Seizures

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Does not apply to activities of foreign law enforcement officers acting outside of the U.S., but search of US citizen where sufficient US involvment will constitute a search. Extraterritorial searches of nonresident aliens are never covered by the Fourth Amendment.

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Fourth Amendment definition "Persons"

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(1) a defendant's body as a whole (2) the exterior of the defendant's body (3) the interior of the defendant's body and (4) the defedant's oral communications

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Fourth Amendment definition "Houses"

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includes (1) structures used as residences (2) buildings attached to the residence (3) buildings not physically attached to a residence that are used for the intimate activities of the home and (4) the curtilage of the home

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Fourth Amendment definition "curtilage"

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Curtilage for Fourth Amendment purposes is the land immediately surrounding and associated with the home. Does not inlcude unoccupied and undeveloped land.

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Fourth Amendment Factors to determine if land falls within the curtilage

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(1) the proximity of the land to the home (2) whether the area is included within enclosures surrounding the house (3) the nature of the use to which the area is put and (4) the steps taken by the residen to protect the land in question from observation

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Fourth Amendment definition "Papers"

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includes personal items [letters, diaries, business records]

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Fourth Amendment definition "Effects"

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includes everthing not constituting "house" or "papers"

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What is the standard for Fourth Amendment challenges?

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Whether the defendant has a reasonable expectation of privacy.

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Fourth Amendment "False Friends" doctrine

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no search occurs where undercover agent or police informant masquerading as defendant's friend report to government defendant's statements made in informant/agent's presence.

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Fourth Amendment "Open Fields"

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Does not constitute a search because there is no legitimate expectation of privacy in activities which occur in open fields

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Fourth Amendment "Pen Registers"

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Not a search - third pty disclosure, expectation of privacy unreasonable

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Fourth Amendment - Electronic Tracking Devices

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Does not constitute a search to the extent that it provides the police with information that could have otherwise been secured by visual surveillance from public places. Surveillance of activities occuring in public always falls outside the protections of the Fourth Amendment.

However, a search occurs where a device allows the police to monitor activity inside a private place, e.g. home.

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Fourth Amendment - Thermal Imagers

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Constitutes a serch. Use of such technology constitutes a search if it enables the government to gather evidence from a constitutionally protected area to which it would not otherwise have access without a warrant.

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Fourth Amendment - Aerial Survellance

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Does not constitute a search if (1) occurs from public navigable air space (2) is conducted in a physically unintrusive manner and (3) does not reveal intimate activities traditionally connected with the use of a home or curtilage.

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Fourth Amendment - Dog Sniffs and Other Tests for Contraband

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Activity aimed at detecting "mere presence" of contraband or identifying suspicious substance does not constitute a search.

However, tests to determine "personal use" of contraband [e.g., urine tests] qualifies as a search.

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Fourth Amendment - Garbage

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There is no reasonable expetation of privacy left in garbage left for collection "outside" the curtilage of a home.

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Fourth Amendment - Seizure of Property

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Tangible property is seized where there is some "meaningful interference" with an individual's possessory interests in that property.

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Fourth Amendment - Seizure of Persons

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A person is seized when in view of all of the circumstances surrounding an incident, a reasonable person would have believed that he was not free to leave.

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Fourth Amendment - Seizure of Persons - Brief Questioning

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Brief questioning is unlikely to amount to a seizure.

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Fourth Amendment - Scope of Probable Cause

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Probable cause is required for all (1) arrest and search warrants and (2) arrests.

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Fourth Amendment - Probable Cause defined in case of arrest

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Probable cause exists when facts and circumstances within an officer's personal knowledge, and about which he has trustworthy information, are sufficient to warrant a person of reasonable caution to believe that an offense has been committed and the person to be arrested committed it.

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Fourth Amendment - Probable Cause defined in case of a search

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Probable cause exists when the facts and circumstances within an officer's knowledge, and about which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that an item described with particularity will be found in the place to be searched.