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42 Cards in this Set

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What is the selective incorporation approach?
Not all right enumerated in the Bill of rights are applicable to the sate but if any aspect oa right is found to so necessary to fundament fairness that it applies to the states then all aspects and all court interpetations of that right apply.
What are the two applicable 4th amendment clauses to Criminal Procedure?
The reasonableness clause and the warrant clause.
what does the 4th A reasonableness clause gaurd against?
"against unreasonble searches and seizures"
What does the 4th warrant clause require?
That "no warrant shal issue but upon porbable cause"
what does the 4th A warrant requirements?
That the warrant be "ussported by Oath or affiation and particularly describing the palce to be se
When is a warrant required?
Before a search and seizure.
Is a warrant always required?
No exigent circumstances are an exception to the warrant clause.
what the Probale cause requirement?
the 4th amendment requirment that a warrant be issue only opon probable cause
Is probable cause required for a search and seizure?
NO thre is not 4th A requirment that a warrantlees search or siezure take lace only upon prabble caue. this is why police may conduct a brie "stop and frisk."
Katz v. U.S.
established "reasonable expectation of privacy" test which overturned Olmstead v. U.S. (1928) which restricted electronic surveillance by trespass rule. Both subjective (person's efforts to protect their privacy) and objective (privacy right society is willing to protect) expectations must be considered.
What are the two predominant interpretations of the 4th search and seizure and warrant clauses?
a)warrant preference view: search is presumptively unreasonable if conducted without a warrant because warrant clause is connected to the search and seizure clause.

b)separate clauses view: warrant is not necessary if the search is otherwise reasonable because the warrant clause is not connected to the search and seizure clause.
Four requirements of a valid search warrant
a)issued by a neutral magistrate

b)based on probable cause

c)supported by oath or affidavit

d)describes with particularity the places to be searched and the items to be seized.
Mapp v. Ohio 367 U.S. 643 (1961)
extends the exclusionary rule established in Weeks v. U.S. (1914) to state officials, evidence seized illegally is not admissible.
Good Faith Exception to the exclusionary rule:

Leon
Evidence obtained in good faith, but upon a defective warrant is admissible
Measure and reasoning for the good faith exception to the exclusionary rule.
a. the reliance must be objectively reasonable - whether a reasonably well trained officer would have known that the search was illegal, considering all of the circumstances.

b)police can not be deterred by exclusion if they acted in good faith, so there is no reason to exclude the otherwise trustworthy evidence because of a technical defect.
Standing to Raise Fourth Amendment Claims
Fourth Amendment rights may only be asserted by one who is subjected to an unreasonable search or seizure. The rights may not be vicariously asserted. Thus, a defendant cannot challenge a search against a co-defendant.
First thing to assess when looking to see if there was a search.
Governmental Action

The Fourth Amendment only applies to actions by the government. Actions undertaken by private persons acting in the capacity of an agent of the government are also covered by the Amendment. Whether a private person is deemed an agent of the government is determined by the degree of government involvement in the situation and the totality of the circumstances.

KNOW: The Fourth Amendment is not limited to police activity and covers conduct by other public employees, such as firefighters, public school teachers, and housing inspectors.

Exceptions: Searches by non-police government actors are generally of an administrative, not investigatory nature, and are controlled by different standards. [See Chapter 5, Administrative and Non-Investigatory Searches.]
"Persons" under the 4th A
For Fourth Amendment purposes, “person” includes:

(1) the defendant’s body as a whole (as when he is arrested);

(2) the exterior of the defendant’s body, including his clothing (as when he is patted down for weapons);

(3) the interior of the defendant’s body (as when his blood or urine is tested for drugs or alcohol);

(4) the defendant’s oral communications (as when his conversations are subjected to electronic surveillance).
"Houses" under the 4th A
“House” has been broadly construed to include:

(1) structures used as residences, including those used on a temporary basis, such as a hotel room;

(2) buildings attached to the residence, such as a garage;

(3) buildings not physically attached to a residence that nevertheless are used for intimate activities of the home, e.g., a shed;

(4) the curtilage of the home, which is the land immediately surrounding and associated with the home, such as a backyard.
However, unoccupied and undeveloped property beyond the curtilage of a home (“open fields”) falls outside of the Fourth Amendment.
Factors relevant to determining whether land falls within the cartilage are:

United States v. Dunn
(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 resident to protect the land in question from observation.
United States v. Dunn, 480 U.S. 294 (1987).

Commercial buildings receive limited Fourth Amendment protection on the theory that one has a greater expectation in his home than in commercial structures.
Katz v. United States
In Katz v. United States, 389 U.S. 347 (1967), federal officers, acting without a warrant, attached an electronic listening device to the outside of a telephone booth where the defendant engaged in a number of telephone conversations.

The controlling legal test at the time for determining whether police conduct violated the Fourth Amendment was known as the “trespass” doctrine.

Under the trespass doctrine, the Fourth Amendment did not apply in the absence of a physical intrusion - a trespass - into a “constitutionally protected area,” such as a house.

The Court abandoned the trespass doctrine and announced that the appropriate inquiry for Fourth Amendment challenges was whether the defendant had a “reasonable expectation of privacy.”

Applying this new standard, the Court found that despite the fact that the telephone booth was made of glass and the defendant’s physical actions were knowingly exposed to the public, what he sought to protect from the public were his conversations, as evidenced in part by shutting the door to the phone booth. Thus, the government’s electronic surveillance of the defendant’s conversations without a warrant violated the Fourth Amendment.
U.S. v. Leon 468 U.S. 897 (1984) -
allows exception to exclusionary rule if police are acting in good faith on a search warrant that is later declared invalid, due to judicial error.
“False Friends” Doctrine

United States v. White
The Fourth Amendment protects private conversations where no party consents to the surveillance and/or recording but does not protect conversations where one party consents to such activity. Thus, under the doctrine of “false friends,” no search occurs if a police informant or undercover agent masquerading as the defendant’s friend, business associate, or colleague in crime, reports to the government the defendant’s statements made in the informant’s or agent’s presence.

A person is not deemed to have a reasonable expectation of confidentiality from a person with whom he is conversing.

The doctrine also applies where the “false friend” wears a “wire” to record the conversation with the defendant.

If you break the law you risk your freinds ratting on you.
Open Fields Doctrine
Entry into and exploration of so-called “open fields” does not constitute a search within the meaning of the Fourth Amendment.

The “open fields doctrine” is based on the theory that people do not have a legitimate expectation of privacy in activities occurring in open fields, even if the activity could not be observed from the ground except by trespassing in violation of civil or criminal law.
The 4th A and Electronic Tracking Devices
Surveillance of activities occurring in public falls outside the protections of the Fourth Amendment. Thus, the use of an electronic tracking device attached to a suspect’s vehicle or object carried by the suspect 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. United States v. Knotts, 460 U.S. 276 (1983). However, where such device allows the police to monitor activity inside a private place such as a home, a Fourth Amendment search occurs. United States v. Karo, 468 U.S. 705 (1984).
Kyllo v. United States, 533 U.S. 27
Thermal Imagers

The use of a thermal-imaging device aimed at a home from a public area to detect relative amounts of heat within constitutes a search.

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.
Aerial Surveillance

California v. Ciraolo, 476 U.S. 207 (1986)
Aerial surveillance by the government of activities occurring within the curtilage of a house does not constitute a search if the surveillance:

(1) occurs from public navigable airspace;

(2) is conducted in a physically non-intrusive manner; and

(3) does not reveal intimate activities traditionally connected with the use of a home or curtilage.

(involving aerial surveillance of defendant’s backyard in which he was growing marijuana)
Dog Sniffs and Other Tests for Contraband
Activity that is aimed at detecting the mere presence of contraband, or identifying a suspicious substance as such, does not constitute a search. United States v. Place, (a dog sniff of luggage, which was located in a public place, does not constitute a search)

United States v. Jacobsen (a chemical test that merely discloses whether a particular substance is cocaine “does not compromise any legitimate interest in privacy,” and is, therefore, not a search).

However, a test to determine personal use of contraband, such as a urine test to detect drug use, does qualify as a search.
Inspection of Garbage
There is no reasonable expectation of privacy in garbage left for collection outside the curtilage of one’s home. California v. Greenwood.
Seizure of Property
In contrast to a search, which affects a person’s privacy interest, a seizure of property invades a person’s possessory interest in that property.

Tangible property is seized in Fourth Amendment terms “when there is some meaningful interference with an individual’s possessory interests in that property.”
Seizure of Persons
A Fourth Amendment seizure of a person occurs when a police officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen, Terry v. Ohio,

or put another way, when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall.
Examples of activities that constitute a seizure of persons include:
•arrests.

•physically restraining or ordering a person to stop in order to frisk or question him on the street.

•taking the person into custody and bringing him to a police station for questioning or fingerprinting.

•ordering a person to pull his automobile off the highway for questioning or to receive a traffic citation.

•stopping a car by means of a roadblock.

However, brief questioning by itself is unlikely to amount to a seizure. E.g., Florida v. Bostick, 501 U.S. 429 (1991) (brief questioning during a “bus sweep” not a seizure); Immigration and Naturalization Service v. Delgado, 460 U.S. 210 (1984) (brief questioning about citizenship during a “factory sweep” not a seizure).
Do police officers have the right to seize any and all evidence connected to criminal activity under investigation.
Yes. Police officers may seize any evidence that has a connection to the criminal activity under investigation.
Scope of “Probable Cause” Requirement
Probable cause is required as the basis for:

(1) arrest and search warrants; and

(2) all arrests (regardless of whether an arrest warrant is required)
Do all searches and seizure need be founded on probable cause?
No Not all searches and seizures need be founded on probable cause. A lesser standard – “reasonable suspicion” – may apply where the intrusion is minor, such as a pat-down for weapons.

Furthermore, where the intrusion on a person’s privacy is especially slight and society’s interest in conducting the search or seizure is significant, there may be no need for individualized suspicion, such as for society and border checkpoints and certain administrative searches.
“Probable Cause” Defined
“Probable cause” exists when the facts and circumstances within an officer’s personal knowledge, and about which he has reasonably trustworthy information, are sufficient to warrant a “person of reasonable caution” to believe that:

(1) in the case of an arrest, an offense has been committed and the person to be arrested committed it.

(2) in the case of a search, an item described with particularity will be found in the place to be searched.
Is the "Probable Cause" "person of reasoanble caution" test objective or subjective
Probable cause is an objective concept. An officer’s subjective belief, no matter how sincere, does not in itself constitute probable cause.

However, in determining what a “person of reasonable caution” would believe, a court will take into account the specific experiences and expertise of the officer whose actions are under scrutiny.
Basis for “Probable Cause”
Probable cause may be founded on:
(1) direct information, i.e., information the officer secured by personal observation; and

(2) hearsay information.

No weight may be given to unsupported conclusory statements in probable cause determinations.
What is the direct information basis for probable cause?
Direct Information

Unless a magistrate has reason to believe that an affiant has committed perjury or recklessly misstated the truth, the magistrate may consider all direct information provided by the affiant. The affiant’s information is considered reasonably trustworthy because it is provided under oath.
What is the hearsay information basis for probable cause?
“Informant” Information

A magistrate may consider hearsay for purposes of determining probable cause, as long as the information is reasonably trustworthy. The informant’s identity need not be disclosed to the magistrate unless the magistrate doubts the affiant’s credibility regarding the hearsay.
What is the test for the informant information basis for probable cause?
“Totality of the Circumstances” Test

The Aguilar-Spinelli test for determining the reliability of informant tips controlled until 1983, when it was replaced by the Gates “totality-of-the circumstances” test.
Illinois v. Gates
In Illinois v. Gates, the Court abandoned Aguilar and substituted the totality-of-the-circumstances test for probable cause determinations, which requires the magistrate to balance “the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.” The factors enunciated in Aguilar - basis-of-knowledge and veracity - remain “highly relevant” in determining the value of an informant’s tip but are no longer treated as separate, independent requirements.


[a] Aguilar-Spinelli Test

Hearsay information had to satisfy both of the test’s prongs below in order to be deemed sufficiently trustworthy to be included in the probable cause assessment:
(1) the basis-of-knowledge prong; and
(2) the veracity prong, of which there are two alternative spurs:
(a) the “credibility-of-the-informant spur” and
(b) the “reliability-of-the-information spur.”
Aguilar v. Texas; Spinelli v. United States.