Chapter 12- Searches, Seizures, and Arrests

THE FOURTH AMENDMENT- People are secure from unreasonable searches and seizures, and must be probably cause

to issue a warrant, place searched must be described- Remedies against violation: exclusionary rule and civil action against offending officer

Privacy- In 1967, Supreme Court changed interpretation to protect people as well as places- Katz test: search occurs when an expectation of privacy that society is prepared to

consider reasonable is infringedo No search unless there is an invasion of reasonable expectation of privacy

Observing from a sidewalk for ex is not a search- Less legal right to privacy in commercial premises than dwellings

o Overnight guests have a reasonable expectation of privacy in host’s homeo Seizure: a meaningful interference with an individual’s possessory interest

Probable Cause- Law enforcement officers must present sufficient facts to convince a judge to issue a

search warrant or an arrest warranto No warrant issued unless it is more likely than not that the objects sought will be

found in the place to be searchedSources Used to Establish Probably Cause

- Any observations, evidence, hearsay etc can be used- Must be supported by facts

o Inadmissible evidence can be used to gain warrant if it has some credibility- Debated whether info from an informant (someone involved in the crime) can be used

o Officer just has to give enough info to magistrate to prove credibility and reliability of informant

- Animals such as dogs can be usedo Having a dog sniff you is not a search

Good Faith Reliance on a Warrant- Exclusionary rule doesn’t apply to evidence seized by a police officer, acting in good

faith reliance on the warrant, it is still admissible

SEARCHES AND SEIZURESThe Warrant Requirement

- Strong preference for the use of warrants over warrantless actions- Searches with warrant are considered reasonable, warrantless searches only in special

circumstances- If warrant is facially invalid, fruits of the search will be excluded

Obtaining a Warrant- Evidence must establish probable cause that the items sought will be found in area to be

searched- Must be probable cause to believe items sought are connected to criminal activity- Area to be searched and any item to be seized must be described

o Warrants for items that are illegal in themselves don’t need to be as particular- Facts that support probable cause have to be supported by Oath

- Warrant must be issued by a neutral and detached magistrateScope of Warrants

- May be issued to search and seize any item that is evidence of a crime, fruit of a crime, contraband, or used to commit a crime

- Can be issued to search or seize any property- Occupants of a searched area can be detained, but not for an unduly prolonged period of

timeExecuting the Warrant

- Usually to be executed during the dayo A request must be made to execute at night

- Must be executed in certain time after issuance- Police must knock and announce purpose

o Judge may issue no-knock warrants- Owner of property must get a receipt of items taken

Exceptions to the Search Warrant RequirementA voluntary consent to a searchPlain View

- The officer must lawfully be in an area from which the object to be seized is in plain view and the officer does in fact see the item, there is probable cause to believe the object is connected to a crime, and the officer has a right to access the object itself

o Evidence in public places doesn’t need warranto If on private property lawfully, no warrant neededo Only sense of sight and touch may be used to establish plain view

Stop and Frisk- Probable cause not required, but officer has to have reasonable suspicion that the person

stopped has committed, is committing, or is about to commit a crimeo Intuition alone is not enough suspicion

- Seizure happens when the reasonable person believes that he or she is not free to leave- Questioning isn’t detention, but may be if it becomes lengthy or accusatory

o Stops are to last no longer than necessaryo Investigation must be conducted in the least intrusive way available to dispel or

verify the officer’s suspicions o Limited to outer clothing

Plain Feel- If contraband is discovered through the sense of touch, probable cause exists to search

further, contraband is also admissibleSearch Incident to Arrest

- After a lawful arrest, defendant’s person may be fully search w/out warrant- Area where arrest occurred limited to area within defendant’s immediate control- When arrest made on occupant of a car, the passenger compartment and any containers

may be searchedPreservation of Evidence

- Any evidence that may be destroyed, intentionally or not, before a warrant can be obtained, can be searched and seized

Emergency Searches and Hot Pursuit- Officers allowed to enter if he has reasonable belief of an emergency, any evidence seen

can be seized- Officer chasing a suspect doesn’t have to end pursuit at the door

o Plain view exception applies once insideOpen Fields

- No warrant needed for “open fields” around one’s home- Curtilage (area directly around the home) is secured- Many factors used to separate the two

Border Searches and Profiles- No search at the border of the US requires a warrant, must be reasonable however- Strip search requires real suspicion, cavity searches require more suspicion

o Must be private and medically safe- Roadblock checkpoints miles from border require probably cause to search a vehicle - Profiles used to determine who is most likely to be doing illegal activity

o Reasonable profiles can establish reasonable suspiciono Can support real suspicion, but nothing more

Motor Vehicles and Roadblocks- Less expectation of privacy in a car than at home

Stops- Motorist can be stopped with probable cause- Frisk permissible with reasonable belief of a weapon- Roadblocks used in 2 ways:

o To apprehend a particular suspect Reasonable suspicion must be made to stop someone

o To protect the public from unsafe drivers Temporary detentions permitted if both random and reasonable Must be systematic Sometimes used to test sobriety and are supported by courts

Occupants- Drivers and occupants of lawfully stopped cares may be ordered out without specific

cause, cant be searched w/out probable causeSearches

- Vehicles may be impounded if driver or owner is arrested, but may use a less intrusive manner such as having someone else drive the car home

- Inventory search may be conducted if impoundedo Meant to protect owner from vandalism and safety of officers, no intent to

discover evidence, no probable cause neededo Can only search glove compartment and trunk if unlocked

Prisoners- 4th amendment not applicable in prisons in cells, but does apply to personal searches

o Only need to meet the reasonableness provisiono Repeated searches meant to harass are not included

ARRESTS- Deprivation of freedom by a legal authority- Terry seizure: person has reasonable belief that they are not free to leave

o Must be short as possible and limitedly intrusiveo Anything more is an arrest

The Warrant Preference- Probable cause will be supported on appeal of a warrantless arrest- To arrest in a public place: officer must have probable cause to believe that a crime was

committed and the person arrested committed the crimeo Usually must be a felony, states differ on treatment of misdemeanors

Misdemeanors usually need warrant unless committed in presence of officer

Arrests in Protected Areas- Warrant required- Limited right to enter suspect’s home, with reason to believe suspect is within- Don’t authorize entry into property of a third person

o Search warrant would be required as wellSearch Incident to Arrest and the Protective Sweep

- Arrestee and area within arrestee’s immediate control may be searched- Limited to areas where a weapon might be obtained- Protective sweep not allowed unless there is belief that other dangerous persons are

hiding in homeo Limited to areas where a person could be hiding

Executing Arrest Warrants- Can be executed at any time, but usually at reasonable hour- Must knock and announce presence except when:

o Safety of police or others will be endangered w/announcemento Announcement will allow those inside to destroy evidence or escapeo Occupants know the purpose of the officers

Illegal Arrests- Doesn’t affect right to trial, except if government conduct is outrageous, shocking, and

gross- Evidence obtained thru a search incident with an illegal arrest is inadmissible