Constitutional Law

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Constitutional Law

• Chapter 4
• Search and seizure

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4th Amendment

• The right of 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.

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Objectives

• Understand the reasons authority is limited for
  the police to search and seize evidence

• Requirements of the 4th for a police officer to
  have authority to search for criminal evidence,
  limited weapons check, or inventory search

• What is a free zone for searches and when do
  police cross the line and it becomes a search or
  seizure

• The grounds and scope of a search, the intensity
  of the search activity at various levels EX
  Warrant, Consent, Lawful Custody, Motor Veh etc

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Objectives Cont

• Understand the 4th Amendment requirements for
  police to have the authority to seize property
  for each of the following purposes
• To use as criminal evidence
• To conduct a temporary investigation
• To preserve the evidence while applying for a
  warrant
• To impound the property

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Objectives Cont

• Students shall understand the 4th amendment
  exclusionary rule and its various recognized
  exceptions

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4th Regulates 3 things

• Searching persons for criminal evidence
• Places or things for criminal evidence
• Seizing criminal evidence

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Levels of Investigations

• Officers must establish a certain level of
  probable cause in order to get a warrant
• Elements of probable cause can be gathered by
  surveillance such as plain view of stolen
  property or observation of drug sales by an
  undercover officer.
• -also by corroborating evidence such as officer
  finding clues to a crime in a suspects trash can
  left on the curb subject to inspection

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Difference in Search and a Seizure
A search occurs when a police officer intrudes on
a suspects reasonable expectation of privacy. A
seizure occurs when an officer interferes with a
suspects possessory rights in property
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Police Non-search Activity

• Known as the free zone
• Police can conduct investigative activity as long
  as it does not interfere with the privacy rights
  or possessory rights
• As long as the suspect is free to go about his or
  her business
• Observation of something in plain view by police
  in a private dwelling
• Checking someones garbage after they left it on
  the street corner

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Consent Searches

• Consent always eliminates the need for a search
  warrant if
• Permission is given by someone who has authority
• The consent is voluntarily given
• An officer can misrepresent himself to get into
  the area as long as it does not destroy the
  voluntariness of the consent

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Limited Searches and Seizures

• Police have the right to briefly examine evidence
  to determine if it is connected to a crime
• Once the degree of certainty is established that
  the evidence in question is criminal evidence
  then police must get a warrant based on probable
  cause
• Terry V Ohio is a good case

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Full Searches and Seizures

• Full searches always require a search warrant
  unless the search falls within the search warrant
  exception.
• Exceptions
• Consent is an exception to a required warrant but
  the search is limited to what the suspect will
  allow police to search at a given time
• Search incident to arrest but limited to area in
  suspects immediate control

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Plain View Doctrine

• During an authorized search rather it be with a
  signed search warrant or with a consent, any
  contraband observed in plain view can be legally
  seized even if it is not named in the search
  warrant

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Cases that defined searches

• Olmstead v New York
• Police tapped suspects home phone w/o probable
  cause.
• They did not physically enter the home to tap the
  line so the Supreme Ct ruled there was no search

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Cases that defined searches cont

• Katz vs. United States
• Officers did not enter a phone booth where there
  was a reasonable expectation of privacy but
  placed a recorder on top of booth
• Supreme ct reversed Olmstead and stated officers
  violated law

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Search Defined

• The supreme court defines a search as police
  activity that intrudes upon a citizens
  reasonable expectation of privacy
• Police cannot intrude into a physically protected
  location
• Police must have a warrant to use advanced
  surveillance technology to spy on activities that
  citizens expect are private.

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Physically Protected Areas

• Persons- encompasses parts of a persons body,
  clothing, pockets, etc., that are not exposed to
  public view
• Houses-locations closed to the public such as a
  persons home and its curtilage, apartment,
  hotel room, private business, private office,
  warehouse, closets etc.
• Papers- letters, journals, records, films, or or
  documents
• Effects- closed containers handbags, briefcases,
  luggage, vehicles, other personal possessions

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Use of surveillance Technology

• Using devices to intercept a private
  communication or to spy on domestic activities
  within a home constitutes a search
• Police must have 4th amendment authority before
  conducting these searches unless the search falls
  under the new rules regarding terrorism

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Non-Searches or Free Zone

• Searches conducted by private parties without
  police involvement are not under the 4th
  Amendment jurisdiction
• Any police activity that does not intrude on a
  suspects reasonable expectation of privacy
• Open view where anything can be seen, heard, or
  smelled by members of the public from a vantage
  point where an officer is present
• Officers can also use flashlights, binoculars,
  telescopes, cameras, and aerial surveillance to
  enhance viewing

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Free Zone Continued

• Canine Searches
• A dog can sniff luggage and this does not expose
  the contents
• Abandoned Property
• Trash cans left on curb
• Duplication of Private Party Searches
• Police can duplicate the original search if they
  go no further

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Sources of Search Authority

• Officers must act under a defined or recognized
  source of search authority
• Search authority varies with the search
• Evidentiary search- to discover evidence of a
  crime
• Limited weapons Search- to disarm a suspect
• Inventory Search- To prepare a list of property
  taken into custody

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Search Activity

• Each time an officer has gained search authority
  he/she must recognize the companion rules that go
  with the type search they are conducting
• Scope- the areas that may be searched
• Intensity- the thoroughness with which these
  areas may be searched

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Search Activity Cont

• Full searches- Are searches that are conducted to
  gather criminal evidence
• They require a search warrant or a recognized
  exception to a warrant
• Full searches are limited by permissible scope
  and intensity based on the objects for which the
  officer has search authority
• Example- Officers cannot look inside a table
  drawer for a suspected stolen telescope or larger
  object

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Probable Cause for a Search Warrant

• Is similar to the standard for an arrest warrant
• Less than beyond a reasonable doubt but more than
  a hunch or reasonable suspicion
• Probable cause to search requires facts to
  justify believing 3 things
• That criminal activity has taken place
• That specific objects associated with the crime
  exist
• That they will be found at the place to be
  searched

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Probable Cause for a Search Warrant Continued

• The information has to be fresh that items will
  be found at a place
• The information can grow stale and a search
  warrant will not be issued
• The information may support the fact that a crime
  occurred but because the info is stale a judge
  may not being willing to give officers a warrant

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Search Warrant Requirement

• A search warrant is necessary to conduct a full
  search except when
• Police obtain consent from someone who has
  authority to give it (consent search)
• The search is conducted as an incident to a
  lawful arrest (limited weapons search)
• Police have probable cause to believe a motor
  vehicle may flee and it contains property they
  may lawfully seize (vehicle exception)
• Exigent circumstances that requires immediate
  warrantless action (emergency search)

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Consent Searches

• Voluntary consent given by a person with
  authority is enough to justify a search
• Nothing more is needed
• Where there is joint ownership only one person
  has to give permission
• Police do not have to tell the suspect who gives
  permission he/she has the right to refuse
• Search is limited to the objects and places for
  which the permission has been given

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Searches Incident to Lawful Arrest

• Police can search for anything under the
  suspects immediate control
• The reason for this search authority is to
• Disarm a suspect
• Preserve evidence

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Vehicle Searches

• Police can conduct a warrantless search of a
  vehicle whenever they have probable cause to
  believe the vehicle contains contraband or
  evidence of criminal activity
• This is allowed because the Supreme Ct is aware
  of the ease to which a vehicle can be moved
• The area of the search extends bumper to bumper
  however the scope is limited in that officers
  cannot look inside small containers for a TV

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Exigent Circumstances

• Police can enter private property without a
  search warrant when they are confronted with
  emergency circumstances that create an immediate
  need for immediate action
• Three main circumstances that fall within the
  exceptions
• Hot Pursuit
• Threats to Safety
• Threatened destruction of evidence

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Exigent Circumstances Cont

• Limited both in scope and intensity to action
  immediately necessary to address the exigency
  that justified the entry
• Example Police may enter a home to prevent
  evidence from being destroyed but they must
  postpone a search until a warrant is obtained

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Limited Weapons Searches

• Searches conducted to disarm a suspect to protect
  and officers safety are governed by different
  4th Amendment standards
• Police can perform a limited weapons search when
  they feel the person detained may be armed and
  dangerous

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Limited Weapons Search Cont

• Scope and intensity is very limited to objects
  that may be weapons
• Police may pat the suspects outer clothing
• If a vehicle is involved officers can make a
  cursory inspection of areas capable of housing a
  weapon

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Protective Sweeps

• Are actually another type of weapons search
• When an officer makes and arrest he is allowed to
  perform a cursory visual inspection of closets
  spaces immediately adjoining the arrestee
• The court has ruled that others may be hiding and
  it is for officer safety

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Inventory Searches

• If police arrest a suspect and seize his vehicle
  they have a right to impound the vehicle and do
  an inventory search
• If they take a suspects clothing they have the
  right to conduct an inventory search

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4th Amendment Seizures

• 4 reasons to seize property
• To use it as evidence
• To detain it while conducting a brief
  investigation to determine its ownership or
  contents
• To prevent it from being moved while getting a
  search warrant
• To impound it

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Seizure Defined

• A seizure within the 4th Amendment occurs when
  police commit a meaningful interference with a
  persons possessory interest
• Meaningful interference- means police asserting
  dominion and control over property
• Ex take it, remove it, prevent persons from
  retrieving it

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Seizure Cont

• As far as possessory rights police can exercise
  dominion and control over abandoned property
• According to the court this is not a seizure
  because a person who abandons property
  relinquishes all rights to it

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Seizure Cont..

• Officers can seize property when the officer has
  probable cause to believe it is connected to a
  crime
• While executing a search warrant they find what
  they are looking for
• The property is a product of a plain view
  discovery

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Categories of Seizures

• There are 4 categories of items that officers can
  seize as evidence
• Fruits of the crime- (stolen money or goods)
• Instruments used in commission of the crime
  (weapon)
• Contraband- any property in possession that is
  illegal (drugs, unregistered guns)
• Mere Evidence- Any object linked to a crime

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Exclusionary Rule

• Is a judicially created remedy developed by the
  Supreme Court to deter police violations of the
  4th Amendment
• It requires suppression of evidence derived
  directly or indirectly from an illegal search
• The exclusionary rule applies in both State and
  Federal Courts

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Exclusionary Rule Cont..

• Evidence found in the Mapp vs Ohio case was
  enough to convict Ms Mapp because the Supreme Ct
  ruled that the Exclusionary Rule was not binding
  on the states at the time of this case

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Standing

• Only a persons whose 4th amendment rights have
  been violated by an illegal search can challenge
  introduction of illegally obtained evidence
• Example- If the police search As home and finds
  Bs drugs, B cannot object to the introduction of
  this evidence against him

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Exceptions to the Exclusionary Rule

• Inevitable discovery- If the evidence would have
  been found anyway regardless of the validity of
  the warrant
• Ex Marijuana growing in a field where officers
  present a bad warrant. It would have been found
  later by use of aerial survelliance
• Good Faith- If the officer serves a defective
  warrant but is acting in good faith, then the
  fruits of the find are admissible

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Exceptions Cont

• Impeachment- Although the evidence is not
  admissible it may be used as evidence against a
  suspect if he takes the stand and lies in court
• Use outside the Trial Court- Although
  inadmissible in a court of law the evidence can
  be used in grand jury hearings, parole hearings,
  and civil hearings.

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The End