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Government seizure of a person
Investigatory detentions require reasonable suspicion based on articulable facts
require reasonable suspicion
Search & seizure - checklist?
- 1. Govt conduct - is there?
- 2. Reasonable Expectation of Privacy?
- 3. Valid warrant?
- 4. If no valid warrant, does good faith apply?
- 5. Is there an exception to the warrant requirement?
- 4. Specific searches, persons, or places
- 1) police officer
- 2) private individual directed by police
- 3) privately paid police NOT govt conduct unless deputized with power to arrest
- The government has conducted a search if it violates your reasonable expecations of privacy.
- Judged by totality of the circumstances.
Automatic categories of REP
- 1) own the premises searched
- 2) live on the premises searched
- 3) overnight guest invited over
- 1) someone else's purse
- 2) no standing to object to search inside of a car [didn't claim it as your own], when you are just a passenger
- 3) things held out to the public
- 4) open fields doctrine
Valid search warrant requirements?
- 1) probable cause: A fair probability of crime will be found in area searched
- 2) particularity (on its face): place to be searched, things to be seized
- 3) neutral magistrate
- 1) veracity (credibility) - can be inferred by lots of details
- 2) basis of knowledge - how does the informant know these facts?
- totality of the circumstances
- corroboration by the police
Execution of warrant
Knock-and-announce rule may be ignored if exigent circumstances
Good faith warrant exception
- Officers good faith reliance on a search warrant overcomes defects w/ probable cause and particularity requirements
- 1) barebones affidavit (lacking PC or particularity), no reasonable officer would've relied on it
- 2) police officer mislead magistrate when seeking warrant
- 3) magistrate is biased and abandoned his neutrality
Search Incident to Arrest Warrant Exception
- 1) The search must be contemporaneous in time and place with arrest.
- 2) Search is limited to grab area (person and the places where he could reach)
- 3) Can search adjacent rooms, in places where someone could be hiding to launch an attack
Search Incident to Arrest in Car?
- When a person is validly arrested in a car, the police can search the entire interior of the car (not including trunk), ONLY IF:
- 1) Arrestee is unsecured and still may gain access to interior of the vehicle (NOT trunk!), or
- 2) Police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
- Police can search anywhere they reasonably believe evidence for which the person was arrested will be found, including the trunk.
Automobile Exception to warrant?
- If police have PC to believe that a vehicle contains contraband, they may search the entire vehicle without a warrant.
- They can search the interior compartment, the trunk, and any package, luggage, or any other container that could reasonably contain the item with which they had probable cause to look whether it is owned by the driver or the passenger.
Plain view exception to warrant
Officer may seize evidence if its criminality is immediately apparent, if he is viewing it from a place where he is legitimately present.
- Consent must be VOLUNTARY & INTELLIGENT.
- But, police do NOT have to warn you that you have a right not to consent.
3rd party Authority to consent
- 1) Where two or more people have an equal right to use a piece of property, any one of them can consent to a warrantless search.
- Evidence found may be used against any of the owners
- 2) But if both occupants are present, and one objects, the objection controls.
- 3) Mistaken Authority: If police reasonably believe that the consenting party had authority to consent, the search is valid.
Parents consent to search of a child's room?
- Generally can consent to a search of a childs room
- Exception: depending on childs age, may not consent to a search of locked containers in childs room
- Brief detention for purpose of investigating suspicion of criminal conduct [includes stopping a car]
- Requires RS supported by articulable facts of criminal activity (hunch not enough, even if it turns out to be correct).
- Totality of the circumstances.
- a pat-down of outer clothing to check for WEAPONS
- Justified by concern for officer safety
- 1) If officer reasonably believes by plain feel that something is a weapon or contraband, its admissible [criminality immediately apparent]
- 2) Officer CANNOT manipulate object
Terry Auto Frisk
- If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
- 1) Terry frisk the suspected person
- 2) search the vehicle areas where a weapon could be placed
- 1) Evanescent evidence: don't need a warrant for evidence that might go away if we took the time to get a warrant.
- Ex, scraping under the Ds fingernails.
- If practical to do so, must get a warrant to take a blood draw for a DUI suspect. Not an exigent circumstance to get a DUI blood draw, in and of itself.
- 2) Hot pursuit: of a fleeing felon, do not need a warrant to search.
- **Once the police enter someones home from a hot pursuit, there is no effective legal limit on the search. Can find the guy and then keep searching.
- Police in hot pursuit may enter ANYBODYS HOME, even if it is not the felon. All items in plain view will be admissible.
- 3) Emergencies affecting health or safety: community caretaker exception, no warrant needed
- Before incarceration of an arrestee, the police may
- 1) search the arrestees person
- 2) search arrestees entire car if impounded (includes closed containers within the vehicle)
- 3) BUT search must be subject to routine procedure (should not leave too much open discretion)
- 4) If theres another passenger in the car who can drive it home, NOT necessary to impound, so inventory search NOT valid
- 1) Public school children in extracurricular activities (includes chess club members & school dance) can be randomly drug tested.
- 2) Warrantless searches of public school childrens effects (backpacks, purses) is permissible to investigate violations of school rules
A school search is reasonably only if:
- 1) offers a moderate chance of finding evidence of wrongdoing
- 2) measures adopted to carry out the search are reasonably related to the objectives of the search.
- 3) search is not excessively intrusive
As long as they are neutrally applied, dont need any suspicion
No 4th Am rights.
- 1) society's need for the evidence
- 2) magnitude of the intrusion
- 1) A dog alert for drugs can form the basis for PC for a search
- 2) Traffic stops a dog sniff is not a search, as long as the police didnt extend the stop longer than necessary to effect the stop.
- 3) Without PC, police cannot use a drug-sniffing dog directly outside the home of a suspected drug dealer.
Wiretapping & Eavesdropping
- 1) All wiretapping and eavesdropping is a search that requires a warrant.
- 2) EXCEPTION: everyone assumes the risk that the person to whom he is speaking either consents to the government monitoring the conversation, or will be wired. Therefore, no 4th Am objection that it was a warrantless search.
- 3) Exception: no 4th Am right if speaker makes no attempt to keep the conversation private