Searches/ Seizures of Property

1. Does the defendant have a Fourth Amendment Right to the property?

   1. Reasonable Expectation Test [Katz, White, Carpenter, Knotts]: Actual subjective expectation of privacy & that expectation is one society is prepared to recognize as “reasonable” or “legitimate”

   2. Trespass Analysis [Jones, Jardines]: Physical intrusion by the government into a constitutionally protected area to obtain information

   3. Specific Applications: Open Fields, Aerial Searches, Technology, Trash, Dog Sniffs

2. Did the police have a valid warrant?

   1. Issued by a Neutral and Detached Magistrate [Lo-Ji Sales v. NY]

   2. Probable Cause: A reasonably prudent officer has enough trustworthy facts to believe that a suspect has committed a crime. probability is sufficient [Pringle]

      1. Totality of circumstances inquiry [Ill v. Gates] & Objective standard so actual motive of officer is irrelevant [Whren]

      2. Can be justified by an objectively reasonable mistake of fact or law [Heien]

   3. Particularity Requirement: Warrant itself must particularly describe place to be searched & items to be seized [Groh v. Ramirez]

   4. Valid Execution: Was the warrant properly executed?

      1. Reasonable mistakes=ok [Garrison, Rettele]

      2. People present while premises are being searched: Can’t be searched [Ybarra] but can be detained [Summers] & handcuffed [Muehler] if in immediate vicinity [Bailey]

      3. Must Knock and announce before search [Wilson v. Arkansas] UNLESS have RS that, under particular circumstance, knocking and announcing would be dangerous or futile or that it would inhibit the investigation, i.e. lead to destroyed evidence [Richards]

3. Does it fall under one or more exceptions to the warrant requirement?

   1. Exigent Circumstances [Hot Pursuit, Safety, Preventing Destruction of Evidence]

      1. Hot Pursuit: Search is limited to what’s reasonably necessary to prevent suspect from resisting/escaping [Hayden] & Can’t go into home for routine arrest [Payton]

      2. Safety/Emergency Aid: objectively reasonable belief, under a totality of the circumstances, that a home’s occupant would be imminently threatened or seriously injured [Stuart]

      3. Preventing Destruction of Evidence: police have reason to believe evidence is being destroyed AND officers didn’t create exigency through actual or threatened 4A violation (knock and announce doesn’t count) [KY v. King]

   2. Plain View: Police can make a warrantless search/seizure if they: a) Are legitimately on the premises, b) See evidence of a crime in plain view, c) Have probable cause to believe the item is evidence of a crime (i.e. the item has an immediately incriminating characteristic) [Coolidge]

      1. Police can use all senses, including touch [Dickerson] but cannot manipulate area, otherwise counts as additional search [Dickerson/Hicks]

   3. Automobile Exception: Police can make a warrantless search of a car if they have probable cause that it contains evidence of criminal activity [Carroll v. US]

      1. If police have probable cause to search the car, can search entire car + all containers within car that might contain object police are searching for [US v. Ross]

         1. “All containers” include personal belongings (purse) of passengers because they too have lower expectation of privacy [WY v. Houghton]

      2. BUT if police only have probable cause to search a container recently placed in a car, police can search that container, but not other parts of the car until they have PC for whole car [Acevedo]

   4. Searches Incident to Arrest: Police can make a warrantless search of a person and the area within their immediate control when making an arrest [Chimel]

      1. Automobile Search incident to arrest: Police can make a warrantless search of an arrestee’s car if: 1) arrestee is unsecured and within reaching distance OR 2) it is reasonable to believe evidence relevant to crime of arrest might be found in car [Gant]

      2. Protective Sweep: reasonable suspicion that a person the swept area “harbored an individual posing danger to the officer or others.” [Buie]

   5. Inventory Searches: arrestee’s personal belongings before incarcerating the arrestee [Lafeyette]

   6. Consent: Totality of circumstances inquiry, factors could include: force, threats, under arrest, express unwillingness to consent [Schnekloth]

      1. Knowledge of right to withhold consent is a factor BUT not a pre-req [Schnekloth]

      2. Authority to consent: One co-occupant may give consent if other co-occupant objects but isn’t physically present/removed for reason unrelated to refusal [Fernandez v. CA]

   7. Probation & Parole

      1. Probationer- Need Reasonable suspicion [Knights]

      2. Parolee- Don’t need either PC or RS [Samson]

   8. Special Needs [Border Crossing, Checkpoints, Drug Testing, Jails]

      1. Border Crossing: Intrusive body search need RS [Montoya-Hernandez]. Otherwise, don’t [Flores-Montano]

      2. Checkpoints: Don’t need RS [Sitz] but must be unrelated to cars or highway safety [Edmond]

      3. Drug Testing: Not a special need for pregnant women [Ferguson]

      4. Searches in Jails & Prison: Don’t need RS, even a strip-search [Florence]

      5. DNA Testing of those arrested: Don’t need RS bc identification = special need [MD v. King]

Seizure of a Person

• Whether a seizure of the person is reasonable depends on the scope of the seizure (is it an arrest or merely an investigatory stop?) and the strength of the suspicion prompting the seizure (an arrest requires probable cause, while an investigatory detention can be based on reasonable suspicion).

1. Was a person seized?

   1. A person is seized only if 1) an officer makes a physical application of force or 2) the person submits to the officer’s non-physical show of authority, i.e. submission + show of authority [Hodari D]

      1. An officer makes a show of authority if a reasonable person under the circumstances would believe that they were not free to leave [Mendenhall] OR not free to decline an officer’s requests and terminate the encounter [Bostick]

2. What was the scope of the seizure, i.e. was it an arrest or just a stop?

   1. No bright line rule between...

Buy the full version of these notes or essay plans and more in our Criminal Procedure Outlines.