Lecture 22 - Ny & Multistate Criminal Procedure - 4Th Amendment

Front 1

What is the 4th amendment?

Back 1

The 4th amendment prohibits unreasonable government searches and seizures. An unreasonable government search or seizure is unconstitutional if it is not authorized by a warrant or conducted under circumstances giving rise to an exception to the warrant requirement.

Front 2

Where is the 4th amendment applicable?

Back 2

The 4th Amendment is applicable to the states through the 14th. The NY Constitution contains language identical to the 4th Amendment, but NY courts interpret the language to afford more generous protection to criminal suspects.

Front 3

The 4th Amendment does not require a warrant for or provide protection from searches and seizures by what 4 things?

Back 3

1. by the government that are reasonable
2. by the government of non-US citizens on foreign soil
3. by the government of US citizens on foreign soil though the government must make a showing of probable cause
4. by private citizens that were reasonable or unreasonable unless or until the government uses the private citizen as an agent.

Front 4

What are warrants?

Back 4

To obtain a valid search or arrest warrant, the government must demonstrate probable cause. The probable cause requirement is intended to strike a balance or compromise between privacy interest and effective law enforcement.

Front 5

What must occur in order for a warrant to issue?

Back 5

For a warrant to issue, a detached disinterested magistrate must find that taking into account the experience and expertise of the officer, the government has demonstrated by oath or affirmation a substantial basis of probable cause, which
1. for an arrest warrant, it is more probable than not that a crime has been committed and the person arrested committed that crime or
2. for a search warrant, it is more probable than not that evidence of a crime or contraband presently is located in a certain place.
These more probable than not showings may be based on hearsay.

Front 6

In NY, the warrant must comply with what law?

Back 6

The CPL (criminal procedure law) such that the details of the court and judge's authority are readily apparent.

Front 7

How particular must a search or arrest warrant be?

Back 7

A search or arrest warrant must be sufficiently particular as to the place or person to be searched or seized. It must be sufficiently specific so as to leave nothing to the discretion of the searcher.

Front 8

What is a general warrant and what does it entail?

Back 8

An all persons present warrant is a general warrant that applies to a specific location, but permits the police to search every person they find there. Such warrants are not per se unconstitutional, but the police must demonstrate that the place searched is
1. devoted to an ongoing illicit purpose (e.g. drug manufacturing or use as a crack den) and
2. that there is probable cause to believe that the particular person searched is involved in criminal activity.

Front 9

To stop and detain a person pursuant to a search warrant, the police must do what?

Back 9

Demonstrate that the suspect was in the immediate vicinity of the place being searched (i.e. in "the line of sight and able to easily reenter the premises".)

Front 10

If a government search or arrest is made without a warrant or pursuant to a defective warrant, then absent an exception, the suspect may be entitled to what?

Back 10

Suppression of the illegally obtained evidence (the exclusionary evidence rule) or to money damages in tort (a Section 1983 Civil Rights claim).

Front 11

To assert a violation of the 4th, the suspect must be able to demonstrate what?

Back 11

A "reasonable expectation of privacy (REP)" in the area searched or the thing to be seized. Absent this showing, D lacks standing to challenge the search and to suppress incriminating evidence obtained as a result.

Front 12

REP has 2 elements. What are they?

Back 12

1. D must show a subjective expectation of privacy and
2. Society must recognize it as objectively reasonable.

Front 13

Individuals are entitled to a heightened REP in their homes. What does this mean for the police?

Back 13

Thus, police may not search a suspect's home with heat sensors or other advanced technology without a warrant.

Front 14

D does not have an REP in her movements on public streets. However, in NY and MBE, police must obtain what to place a GPS tracking device on a suspects car?

Back 14

A warrant to place a GPS tracking device on a suspect's car for an extended period of time.

Front 15

Does a car thief have REP?

Back 15

A car thief has no REP in a stolen car and thus lacks standing to challenge its search. However, if the thief locks the stolen car in his garage at home, then he has an REP in that car and garage and thus standing to challenge the search.

Front 16

Does an invited overnight guest or family member have REP?

Back 16

An invited overnight guest or family member has an REP in a dwelling and standing to contest its search.

Front 17

Does 4th amendment protection extend to MBE open fields?

Back 17

4th Amendment protection does not extend to MBE open fields because objectively there can be no REP for activities conducted outside the curtilage (30-50 feet surrounding the home).
In NY, D may be able to demonstrate a subjective REP in an open field if D abides by NY property laws to establish that REP (e.g. putting up no trespassing signs or a fence).

Front 18

Does REP exist in abandoned buildings?

Back 18

No REP exists in abandoned property, which may be seized without probable cause and without a warrant. D's abandonment of the property, however, may not be the result of police misconduct.

Front 19

What is garbage deemed as?

Back 19

Garbage placed outside the curtilage for collection is deemed abandoned and the police may search through it without a warrant.

Front 20

How are eavesdropping warrants obtained and what do they entail?

Back 20

A REP exists in telephone conversations, emails, and faxes. The police may not record or listen to conversations by means of instrument, device, or equipment without 1. a warrant or 2. without the consent of one party to the conversation.

Front 21

Under the CPL, what does a wire tap warrant application require?

Back 21

Under the CPL, a wire tap warrant application requires "a particular description of the nature and location of the communication facilities" and a limited definite time duration not to exceed 30 days without an application for an extension.

Front 22

What must the police do to obtain a wire tap warrant?

Back 22

To obtain a wire tap warrant, the police must have probable cause to believe that particular communications related to the offense will be intercepted and show that normal investigative procedures have failed, or are likely to fail, or are too dangerous to employ.

Front 23

What happens if the police inadvertently hear something of importance?

Back 23

If the police inadvertently hear unrelated incriminating conversations, they must amend the warrant with court "as soon as possible." When the warrant expires, the tapes must immediately be brought to the judge to be sealed and D must be notified within 90 days whether or not incriminating statements were obtained. For a delay in notice to result in suppression, D must demonstrate prejudice.

Front 24

What must the people to in order to use the tapes in court?

Back 24

To use the tapes in court, the people must, within 15 days of arraignment, provide D with a copy of the warrant and its supporting papers.

Front 25

What happens if the 4th is violated?

Back 25

If the 4th is violated by a wire tap and incriminating evidence is obtained against a 3rd person who is not a party to the conversation, that 3rd person has no REP and therefore no standing to challenge the 4th Amendment violation.

Front 26

What happens to eavesdropping evidence that’s been unlawfully obtained?

Back 26

Eavesdropping evidence unlawfully obtained by anyone is not admissible in a NY civil or criminal case against an "aggrieved person" (i.e. a participant in the conversation). Unlawful eavesdropping is also a crime in NY.

Front 27

What must the police have to arrest D?

Back 27

To arrest D in his home, the police must have D's consent, exigent circumstances, or an arrest warrant.

Front 28

What must the police have to enter a 3rd party’s home?

Back 28

To enter a 3rd party's home to arrest D, the police must have the 3rd party's consent, exigent circumstances, or a search warrant for the 3rd party's home.

Front 29

What happens to incriminating statements obtained by the police after a warrantless probable cause arrest in the home?

Back 29

Incriminating statements obtained by the police after a warrantless probable cause arrest in the home are not suppressed in MBE because although the entry was illegal, the arrest was properly based on probable cause.
NY suppresses such statements. Under NY law, had an arrest warrant been obtained, formal judicial proceedings would have commenced and D's right to counsel would have indelibly attached, thus prohibiting any police interrogation outside the presence of counsel.

Front 30

Ordinarily, when executing a warrant, the police must first knock and announce their authority and purpose unless the court finds that the police had reason to believe 1 of 2 things which are what?

Back 30

1. evidence might be destroyed (evanescent evidence) or
2. they will encounter violence (i.e. the officer's announcement will place them in peril, and be futile).

Front 31

After waiting 15-20 seconds after announcing their arrival, police are justified in doing what?

Back 31

Police may be justified in breaking down D's door to execute a warrant for drugs.

Front 32

What happens if the police violate the knock requirement?

Back 32

If the police violate the knock requirement, evidence found pursuant to the warrant need not be suppressed. A 1983 civil rights claim is the remedy.

Front 33

When may a no-knock warrant be issued?

Back 33

Where the police demonstrate that the knock requirement will subject them to imminent danger, the magistrate may issue a no-knock warrant excusing the knock requirement.

Front 34

When should a NY search warrant be executed?

Back 34

Generally, a NY search warrant should be executed between 6am and 9pm, but in all hours, warrant may be issued. Failure to obtain an all hours warrant will not necessarily render invalid, a warrant executed at night.

Front 35

When can police obtain an anticipatory search warrant?

Back 35

If the police have probable cause to expect contraband will be delivered to a particular location, but they do not know exactly when, they may obtain an anticipatory search warrant, which is triggered upon satisfaction of a condition in the warrant (e.g. the delivery of the contraband).

Front 36

May the police enter a premise if they know that a warrant has been issued?

Back 36

If the police know that a warrant has been issued and is on the way, they may enter the premises before the warrant actually arrives. They must be careful, however, not to exceed the scope of the warrant.
Courts have upheld knock and talk tactics whereby police approach D's home without a warrant to investigate and inquire.

Front 37

An unreasonable government search or seizure without a warrant is unconstitutional unless the prosecution can establish 1 of the following exceptions: BACH'S PIES.
Failure to obtain a warrant or to fit the search or seizure within one of the warrant exceptions will result in suppression of the incriminating evidence under the exclusionary rule. This rule is designed to deter police 4th Amendment misconduct. What does BACH’S PIES stand for?

Back 37

B - border searches
A - automobile searches.
C - consent searches
H - hot pursuit
S - school searches
P - plain view searches
I - searches incident to an arrest
E - emergency search
S - proper stops and seizures

Front 38

Explain further what the B in BACH’S PIES stands for.

Back 38

B - border searches
Routine warrantless searches may be made or persons and property crossing the US border. The elements of a border search are
1. It must be conducted at the border or its functional equivalent and
2. Reasonable certainty that the border has been crossed.
Routine and suspiciousless, warrantless of a person initially are limited to some form of inspection of the person and his luggage. Anything more intrusive is non-routine and requires a heightened articulable level of suspicion. However, highly intrusive border searches of a car or computer equipment can be made without individualized suspicion.
The police have sufficient articulable suspicion to detain, search, and question without Miranda warnings, a traveler entering the country who fits the profile of a possible drug trafficker.

Front 39

Explain further what the A in BACH’S PIES stands for.

Back 39

A - automobile searches.
There is a diminished expectation of privacy in an automobile because its interior is highly visible and it is operated on public streets, serviced in public places, and subject to extensive state regulation and inspection, and it's easily moveable.

Front 40

Under the A in BACH’s PIES, what must the police do during auto stops?

Back 40

(a) auto stops
To stop an automobile, the police must demonstrate
1. probable cause that a traffic violation occurred or
2. reasonable suspicion of criminal activity. Pursuant to a valid stop, the police as a protective measure may order the driver and passengers to step out of or stay in the car.
The police may use even a minor traffic infraction to stop a car they suspect was involved in criminal activity as long as the pre-textual stop was supported by a traffic infraction. The question is not whether the reasonably prudent police officer "would have" made the stop without the suspicion or hunch, but whether the officer legally could have stopped the car for the traffic infraction.
In NY, police must have founded suspicion of criminal activity to ask the occupants of a vehicle involved in a routine traffic stop whether they possessed weapons.
Following a lawful stop, an officer may order the occupancy out of the car without a particular reason to believe that anyone was armed.
Police may briefly stop a motorist on the basis of an anonymous phone tip suggesting that the motorist has engaged in criminal activity provided the aspects of the caller's tip are confirmed by police observation.
The police need only an articulable basis to request information from the occupants of a parked vehicle.
Generally a seizure must be predicated on individualized suspicion. Thus, random vehicle stops based on a hunch are unconstitutional. However, road blocks and safety check points are permitted to check for drunk drivers, verify driver's licenses for highway safety to catch dangerous criminals, thwart imminent terrorist attacks, or to obtain information about a recent crime. The police must uniformly stop vehicles in a non-discriminatory manner. Thus, minimizing police discretion as to whom to stop.
The primary purpose of the stop may not be to find evidence of ordinary criminal activity or for general crime control. For example, officers walking a dog around cars at a road block or a street crime unit stopping pedestrians in high crime area is a seizure without individualized suspicion with violation of the 4th.

Front 41

Under the A in BACH’s PIES, what must the police do during auto searches?

Back 41

(b) auto searches
A warrantless search of the entire motor vehicle including the trunk and any containers is permissible provided it is predicated on probable cause that the vehicle, occupant, or recent occupant contains contraband or evidence of a crime.
Reasonable suspicion rises to probable cause to search when based on all the facts and circumstances viewed together, a reasonable belief may be formed that a crime has been committed and that the participants in or evidence of that crime are in the car. Generally, if an occupant or recent occupant of a vehicle is found to possess contraband, probable cause exists to justify a search of the entire vehicle including the trunk or closed containers.
Once police have probable cause that the car contains contraband or evidence of a crime, they may immediately search it and any containers therein. They may even search without a warrant several days later under the automobile exception.
If information gathered during the stop reveals a substantial likelihood of a weapon that poses an actual and specific danger to the officer's safety, the officer is justified in engaging in a limited inspection into the vehicle notwithstanding D's lack of access.
Officers also may frisk passengers if they reasonably believe they are dangerous and may gain control of weapons.
If a vehicle is impounded, the police without an probable cause that it contains contraband may inventory the car. The inventory must be conducted in accordance with the police department to find standardized criteria so as to limit what can be seized. It may not be undertaken in bad faith for purposes of uncovering evidence of criminality. If the police fail to follow policy or have no policy whatsoever, the search violates the 4th.

Front 42

Police may search a vehicle incident to a recent occupant's arrest only if 1 of 2 things occurs?

Back 42

1. the arrestee is within reaching distance of the passenger compartment at the time of the search or
2. it is reasonable to believe the vehicle contains evidence relevant to the arrest.
Absent these justifications, a search of an arrestee's vehicle will be unreasonable unless the police obtain a warrant, demonstrate probable cause, or show another exception to the warrant requirement applies.

Front 43

Under the A in BACH’s PIES, what must the police do during auto standings?

Back 43

(c) auto standings
X and Y were passengers in D's car when it was legally stopped by the police for going through a red light. The police illegally searched the glove compartment and trunk where they found a shotgun and shells. This evidence was used to charge D, X, and Y with armed robbery. This evidence was used to charge D, X, and Y with armed robbery.
Defendants have standing to challenge the admission of evidence only when their own constitutional rights are violated. Passengers in a vehicle have standing to challenge the legality of a stop of a vehicle, but unless they can demonstrate an objective REP in that car, they do not have standing to challenge the legality of a search of that car even though they were legitimately present in it. Passengers may however have standing to contest a search of a personal container if they can establish an independent REP in that container. Here, X and Y could not show they had an REP in D's glove compartment or trunk. Thus, the illegal seized evidence will not be suppressed as to X and Y, but will be suppressed as to D who had an REP in his own car.
In NY, where the criminal inference of possession is the sole basis for charging D will possession of unclaimed drugs or a weapon, that NY D has automatic standing to challenge the legality of the search.

Front 44

What does the C in BACH’S PIES stand for?

Back 44

C - consent searches
The police may search a person or a place without a warrant and without probable cause if they obtain the prior voluntary consent of a person in control of that area.
In MBE, but not NY, even when officers have no suspicion, they may request consent to search.
In NY, before asking for consent to search, the police first must have founded suspicion that D is engaged in criminal activity.

Front 45

Under the C in BACH’s PIES, when may consent be voluntary?

Back 45

Consent must be voluntary and affirmative. Key factors in considering whether consent is voluntary are
1. the number of police officers present
2. whether the consenter was under arrest and handcuffed and
3. the consenter's past experience with law enforcement.

Front 46

Under the A in BACH’s PIES, does consent need to be given voluntarily?

Back 46

The consent does not have to be given knowingly. The police may ask for consent to search without first stating that the driver is free to go after issuing a traffic ticket or that she has a constitutional right to refuse the search.

Front 47

Under the A in BACH’s PIES, in D’s absence who may consent to search of common areas?

Back 47

In D's absence, a spouse, parent, or roommate may consent to a search of common areas, but not to areas in which D had exclusive control. The police must demonstrate that they obtained consent for someone they reasonably believed had the authority to consent.
Once consent to search an area or room is granted, police may search anywhere within that area where contraband may be secreted.
In shared space where both co-tenants are present at the same time, both must consent to a search.

Front 48

Under the A in BACH’s PIES, does a babysitter, landlord, or hotel manager have consent to search common areas?

Back 48

No, a babysitter, landlord, or hotel manager may not validly consent to a search.

Front 49

What may parolees consent to in a statement?

Back 49

Parolees who sign a consent statement as a condition to being released may relinquish their REP and consent to being searched randomly without a warrant or probable cause.

Front 50

Under the A in BACH’s PIES, can police take DNA samples without a warrant?

Back 50

The police may take DNA samples without a warrant from people arrested in connection with serious crimes.

Front 51

Under the A in BACH’s PIES, can officials strip search any arrestee before admitting them to jail?

Back 51

Officials may strip search any arrestee before admitting them to jail.

Front 52

Under the A in BACH’s PIES, is consent or a warrant required to extract evidence from the body?

Back 52

Consent or a warrant is required for police to extract evidence from the body or a body cavity. The court based on probable cause may only order minor surgery involving no risks and minor pain.

Front 53

Under the A in BACH’s PIES, what did the Supreme Court hold true for drunk driving cases?

Back 53

The Supreme Court held that in drunk driving cases, the natural dissipation of alcohol does not constitute sufficient exigency in every case to justify conducting a blood test without a warrant.

Front 54

Under the A in BACH’s PIES, in NY when do drivers consent to giving a blood sample?

Back 54

In NY, drivers consent to giving a blood sample if unconscious and reasonable grounds point to their intoxication. If D is unconscious, the VTL requires the test be conducted within 2 hours of the arrest. The 2 hour limit does not apply to a voluntary consent.
The 2nd Circuit upheld immediate warrantless sobriety tests of NYPD officers who fire a gun that injures or kills a person under the "special needs" exception. Here, the warrantless search is justified by the need to manage the personnel of, and maintain public confidence in the NYPD.

Front 55

What does the H in BACH’S PIES stand for?

Back 55

H - hot pursuit
A warrantless entry into a building is permitted in the immediate continuous pursuit of a suspect if there is probable cause to believe that the suspect may be dangerous to the safety of the public.

Front 56

Under the H of BACH’S PIES, factors considered for a warrantless hot pursuit are PAGE, what does PAGE stand for?

Back 56

P - a clear showing of probable cause
A - whether the suspect was armed
G - the gravity of the offense
E - the likelihood that the suspect will escape or evanescent evidence will be destroyed

Front 57

Under the H of BACH’S PIES, is a warrantless hot pursuit into a home allowed?

Back 57

A warrantless hot pursuit into the home is not permitted for a minor offense.

Front 58

Under the H of BACH’S PIES, is deadly force allowed?

Back 58

Deadly force to prevent the escape of a suspect is an unreasonable seizure and deprivation of life without due process of law. Courts use an objective reasonableness standard from the perspective of a reasonable officer on the scene to determine if deadly force is necessary to protect the public and stop a dangerous felon.

Front 59

What does the S from BACH’S PIES stand for?

Back 59

S - school searches
Students in public school have fewer 1st and 4th amendment rights and a lower REP than adults. School authorities do not need a warrant or probable cause to search students or their lockers if there are "reasonable grounds" to believe the search will yield evidence that a penal law or school rule has been violated.
The search must be justified at its inception by the presence of reasonable grounds for suspecting evidence and may not be excessively intrusive in light of the age and gender of the student, and the nature of the infraction.
A supervisor may search another government employee's office or desk, but not a closed briefcase or purse if she has reasonable suspicion of work-related wrongdoing or has a work-related purpose.

Front 60

What does the P from BACH’S PIES stand for?

Back 60

P - plain view searches
There is no REP for incriminating items left in plain view. The police may seize items in plain view that they immediately recognize as contraband or the evidence or fruit of a crime. The officer, must not however, violate the 4th amendment to obtain the plain view vantage point.
A police officer may use a flashlight to plainly view what would have been observable in daylight. The use of a device to enhance the senses does not render unreasonable an otherwise reasonable search.
A dog sniff may be a search, but generally is not so intrusive as to require probable cause or a warrant. However, a dog sniff in a place entitled to a heightened REP (e.g. outside D's front door) is a search for 4th amendment purposes.
The police may use trained dogs to sniff airport luggage or a properly stopped vehicle for drugs without a warrant.
The showing of the reliability of a drug detection dog's alert does not require more than the dog's certification by a bona fide organization after testing.

Front 61

What does the I from BACH’S PIES stand for?

Back 61

I - searches incident to an arrest
For the protection of the police, and for preservation of evidence, the police may make a warrantless search incident to an arrest and may search containers within the suspect's immediate control (wings span or grabable area) for weapons or evidence of which the suspect may gain control.
In NY, to search a closed container incident to an arrest, the police must be able to show that exigent circumstances existed at the time of the arrest and that the search was not significantly divorced in time or place from the arrest.
In NY, the arrest must be lawful, but in MBE, the search may even be incident to an illegal arrest that was made in good faith.
Under the related protective sweep or ambush exception, when the police have specific and articulable facts that the arrest area may harbor additional dangerous suspects, then as incident to the arrest, the police may sweep the entire home, but only into those areas where a person could hide. The purpose of the exception is the protection of the police as well as the preservation of evidence.
The police need a warrant to search a cell phone incident to an arrest.