Searches And Seizures 4th Amendment Outline

Criminal Procedure: Investigations

2 ways to think about 4th amen:

• Trying to protect a bubble of rights, protection for individuals

• Trying to set up rules that will appropriately regulate reasonableness, creating right incentives for police officers

Fourth Amendment – The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• Main tool court can use to regulate police tactics

• Meant to protect against general warrants and writs of assistance

  • Gave too much discretion to the officers

  • Sweep too broadly

Searches and Seizures—4th amendment

1. What is a search? (term of art, court restricts definition to keep a lot of cases out of the realm of 4th amen)

   1. Infringement on a reasonable expectation of privacy (subjective expectation of privacy and that expectation of privacy is objectively reasonable)

      1. Katz: 4th amen protects people not places, wiretapping a telephone booth violated reasonable expectation of privacy, entitled to assume talking on the phone is private

      2. Oliver: no reasonable expectation of privacy in open fields; marijuana field a mile away from home with no trespassing sign; per se rule

      3. Kyllo: police used a thermal imager on home; violates a reasonable expectation of privacy; home is special; couldn’t get info without physical intrusion

         1. What you can perceive with your sense without technological aid is not a search

         2. Changes in technology and availability of technology may alter the analysis

      4. Information you voluntarily give to a third party is not a search

         1. Greenwood: Rummaging through garbage on the curb is not a search, Police asked garbage collector to put aside garbage for them, no reasonable expectation of privacy because trash was abandoned on the curb and conveying the trash to a third person (trash collectors)

         2. Smith v Maryland: pen register is not a search because you convey the phone numbers you call to a telephone company

   2. Physical trespass on person, houses, papers or effects

      1. Olmstead: Wiretapping phone does not violate 4th amen (different now under Katz)

         1. 4th amen purpose was to prevent the use of governmental force, hearing does not include a trespass

         2. Brandeis dissent: gov is the omniprescent teacher, should be based upon invasion of privacy

      2. United States v Jones: resurrection of the Olmstead test, Katz supplements but does not supplant the Olmsted test; police attached GPS tracker to the vehicle; by touching the car, they trespassed so it is a search

      3. Jardines: Using a drug detection dog on the porch of someone’s home is a search; it violates a reasonable expectation of privacy and police trespassed onto the curtilage of the home

Is it a search?

2. What is a seizure? (Unlike search, a seizure is a more common sense definition and court relies on dictionary)

   1. Seizure of a person

      1. Physically touching someone

      2. Successfully submitting to a show of authority

         1. Hodari: fled after police told him to stop, ignored show of authority; no seziure

   2. Seizure is an ad hoc determination; would a reasonable innocent person believe they couldn’t freely terminate the encounter

      1. Bostick: on a bus police searched his bag and Bostick consented, no seizure

      2. Police encounters without more does equal a seizure

3. Is it reasonable?

   1. Warrant requirement

      1. Generally for a search or seizure to be reasonable it needs to be conducted pursuant to warrant; search without a warrant is per se unreasonable

         1. Johnson v United States: smoking opium in hotel room, police needed a warrant to enter her living quarters

      2. Want a neutral magistrate to judge the search and seizure; separation of powers; someone detached; this requirement separates us from a police state

         1. Plomondon: president authorized electronic surveillance, still needed a warrant

   2. Executing a search warrant

      1. Cops are not allowed to demand entry into a house to arrest without a warrant absent exigent circumstances

      2. Knock and announce needs to be taken into account to asses reasonableness of execution of search warrant (Wilson v Ark)

      3. Officers conducting a search warrant can detain people on the premises while they are conducting the search (Summers)

         1. Rationale:

            1. Officer safety

            2. Completing search in orderly fashion (preventing destruction of evidence and officer distraction

            3. Preventing flight

         2. Bailey v US: Summers is limited to people at the scene where the warrant is being executed; police waited for Bailey to leave house and seized him a mile away from residence

      4. What is on a search warrant affects the manner in which the search is carried out

         1. Can only look in places where items could be found

         2. Once they find the items, have to stop

   3. Exceptions to the warrant requirement

      1. Exigent circumstances

         1. Not adequate time to get a warrant, look at totality of the circumstances

         2. Exigent circumstances can be used to justify entry into the home even if police create exigency; look to objective circumstances, don’t want to get into subjective intent of officers

            1. Hot pursuit of a fleeing felon

               1. Warden v Hayden: after armed robbery suspect fled into home; no warrant required

            2. Need to prevent imminent destruction of evidence

               1. Kentucky v King: Officers heard noises after they knocked that led them to believe evidence was being destroyed

               2. Mcneely: no per se rule that BAC will be a valid exigency

               3. McArthur: woman called police to escort her to get her stuff, husband was inside, exigent circumstances can justify temporary seizures of a person

            3. Provision of emergency services

      2. ...

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