SEARCH AND SEIZURE The 4 th
Disclaimer Mr Koepping is NOT an attorney. This discussion is for the purpose of explaining general constitutional principles only. Do not rely on this material in determining what to do if you are involved in a criminal investigation. You should contact an attorney if you have a question about your legal rights in any specific case. Mr. Koepping will NOT post bail for you so do NOT call him and ask.
The 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 Warrants shall not be issued, 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. Full Text
The Reasonableness clause The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated (emphasis added) Applies to the federal government and state government Incorporated by Wolfe v. Colorado in 1949
Expectation of privacy A persons home has a higher expectation of privacy than ones garbage at the curb.
Searches Generally they require a warrant from a judge, but there are some exceptions: Consent: subject agrees to search – police do not need to inform suspect of right to refuse Incident to arrest: search of person or areas within their area of control – including the inside of cars and any containers within Exigent circumstances: if the police are in hot pursuit they dont necessarily need a warrant
Searches (cont.) Loss of evidence: if there is a danger of evidence being destroyed – scraping of fingernails, blood tests Motor vehicles (have a lesser expectation of privacy): if probable cause to believe car (including trunk) contains contraband, evidence, been used to commit a crime, or its occupants have committed a crime (including a traffic violation). Safety: see Terry Stop in a moment. Plain view: inadvertently seeing contraband or evidence as part of an otherwise legal search
Levels of police and citizen encounters Approach: Interaction with police that does not use physical force or show of authority (asking some questions after approaching a person or asking to search luggage) requires no basis for suspicion of a particular individual
Terry Stop Terry Stop: (Terry v. Ohio, 1968) police may stop and frisk (but not arrest) suspects who show unusual conduct that leads the officer reasonably conclude that criminal activity may be afoot or that the suspect is armed
Encounters (cont.) Arrests: requires probable cause (as defined by enough evidence to convince a reasonable person that the suspect committed a specific crime) – these can include flight, furtive movements, in the company of a known offender at or near time of offense, false answers to police, or stops for minor traffic violations
In the schools New Jersey v TLO (1985) – school officials dont need a warrant to search a student, they only need reasonable suspicion (for example: tips, observing suspicious activity, history of similar offences) Vernonia v Acton (1998) – schools can drug test students who are members of athletic teams Safford Unified School District v Redding (2009) – The schools searches cannot extend to strip searches