Criminal Procedure - 4Th Amendment

Front 1

Fourth Amendment Defined:

Back 1

- D has a right to be free from unreasonable searches & seizures (occur when reasonable person would believe she is not free to leave or terminate encounter with govt)

Front 2

Fourth Amendment - 2 Requirements:

Back 2

1) Government Conduct &
2) Reasonable Expectation of Privacy (Standing)

Front 3

4th A. Analysis: Essay Approach

Back 3

1) 4th A. applies to states under 14th A.
2) Protects against governmental conduct
3) D must demonstrate D has standing (reas expect of privacy)
4) Search/ seizure must be made by Warrant (req’s)
5) Warrant Exceptions

Front 4

ARRESTS:

Back 4

Occur when police take a person into custody against her will for purposes of criminal prosecution or interrogation.
- Must be based on PROBABLE CAUSE.

Front 5

Arrest Warrant - when required:

Back 5

- Public Place: arrest warrants are generally NOT required.
- Non-Emergency Arrest of a person in her HOME requires arrest warrant.

Front 6

Other Detentions that are NOT arrests:
- Investigatory Detentions: STOP & FRISK

Back 6

- In order to detain person for investigative purposes, police must have:
1) REASONABLE SUSPICION of criminal activity,
2) Supported by ARTICULABLE FACTS.
- May pat down (frisk) detainee for weapons over exterior of clothing. PLAIN FEEL: must have PC to believe evidence other than weapon is contraband to retrieve from interior of suspect's clothing.

Front 7

Other detentions that are not arrests: AUTOMOBILE STOPS:

Back 7

- Police may generally NOT stop a car UNLESS they have REASONABLE SUSPICION to believe that a law has been violated.
- May search & frisk all passengers of car & all passenger compartments for weapons.
- Pretextual Stops OK
- Fixed Checkpoints: do NOT require PC if stops based on neutral, articulable standard.

Front 8

Other detentions that are not arrests:
DETENTION TO OBTAIN A WARRANT

Back 8

If police have PC to believe a suspect has hidden drugs in his home, they may, for a reasonable time, prevent him from going into the home unaccompanied so they can prevent him from destroying drugs while they obtain a search warrant.

Front 9

Other detentions that are not arrests:
OCCUPANTS OF PREMISES BEING SEARCHED

Back 9

Valid warrant to search premises allows police to detain occupants of the premises during a proper search.

Front 10

Other detentions that are not arrests:
STATION HOUSE DETENTIONS

Back 10

Police must have full PC for arrest to bring suspect to the station for questioning or fingerprinting.

Front 11

EVIDENTIARY SEARCH & SEIZURE - 2 Requirements:

Back 11

1) Govt Conduct &
2) Standing (Reasonable Expectation of Privacy)
(Reasonableness requires a WARRANT except in 6 circumstances)

Front 12

Evidentiary Search & Seizure - Who Has STANDING:
- Automatic Standing:

Back 12

- Automatic Standing: own or right ot possession of place searched; lived on premises searched; overnight guest (but OGs do not have standing to object to a search of the residence)

Front 13

Evidentiary Search & Seizure - Who Has STANDING:
- Sometimes Standing:

Back 13

- Sometimes Standing: own property seized; legitimately present when search took place; if items seized already exposed to the public.

Front 14

Evidentiary Search & Seizure - Who Has STANDING:
- No Standing:

Back 14

- Drug dealer in residence has NO standing to object to search of residence;
- Passengers in automobile who claim they don't own car & don't claim property in car - do NOT have standing.

Front 15

Evidentiary Search & Seizure - NO reasonable expectation of privacy in things HELD OUT TO THE PUBLIC (no standing):

Back 15

Sound of voice, style of handwriting, scrape paint outside of one's car, account records in bank, monitor location of car on public street or driveway, open fields, flying over public airspace, odors from luggage, garbage at curb, drug-sniffing dog.

Front 16

Police must have a warrant to conduct a search (unless it falls w/i one of the 6 exceptions).
WARRANT REQUIREMENTS:

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1) PROBABLE CAUSE (to believe that seize-able evidence will be found on the person or premises at the time the warrant is executed) &
2) Describe w/ REASONABLE PRECISION the place to be searched & items to be seized.
- Neutral & Detached Magistrate must issue warrant.
- Warrant must be properly executed: police must execute w/o any unreasonable delay.
- May search premises belonging to non-suspects as long as there is PC that evidence will be found there

Front 17

Use of Informers

Back 17

Affidavits based on an informer’s tip must meet the “totality of the circumstances” test:
- Warrant may be sufficient even though the reliability & credibility of the informer or his basis for knowledge are not established. Informer’s ID generally need not be revealed.

Front 18

Going “Behind the Face” of an Affidavit (for a warrant) – Invalid if all 3 present:

Back 18

(1) a false statement was included in the affidavit by the police,
(2) police intentionally or recklessly included the false statement; and
(3) false statement was material to the finding of PC.

Front 19

Good Faith Exception to invalid warrant

Back 19

Evidence obtained by police in reasonable reliance on a facially valid warrant may be used by prosecution

Front 20

Wiiretapping & Eavesdropping:

Back 20

Require a warrant; Exception: everyone assumes the risk that the person to whom he is speaking either consents to the Govt. monitoring or is wired

Front 21

EXCEPTIONS to the Warrant Requirement:
(“PEACHESS”)

Back 21

1) Plain View
2) Exigent Circumstances
3) Automobile Exception
4) Consent (voluntary & intelligent)
5) Hot Pursuit
6) Evanescent (evidence likely to disappear)
7) Search Incident to Arrest
8) Stop & Frisk

Front 22

Exigent Circumstances (examples)
(exception to warrant requirement)

Back 22

Contaminated food or drugs, persons injured or threatened with injury, & burning fires justify warrantless searches & seizures.

Front 23

Automobile Exception to Warrant Requirement

Back 23

- Police must have PC to believe a vehicle contains fruits, instrumentalities, or evidence of a crime.
- May search whole vehicle & any container that might reasonably contain the item for which they had PC to search. May tow vehicle & search later.
- Police can stop a vehicle if they reasonably believe stopped car violated a traffic law.
- PC to search can arise AFTER vehicle is already stopped.

Front 24

Stop & Frisk
(exception to warrant requirement)

Back 24

- Articulable & reasonable suspicion of criminal activity.
- Since stop is not an arrest, no PC necessary. But have reason to believe criminal activity is afoot.
- A frisk justified only if officer reas thinks suspect has a weapon.
- Pat down detainee for weapons over exterior of her clothing.
- Plain Feel: must have PC to believe it is contraband required to retrieve such item from interior of suspect’s clothing.