2. THE FOURTH AMENDMENT SEARCH AND SEIZURE

3. THE 4 TH AMENDMENT TO THE U.S. CONSTITUTION 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.

5. The Exclusionary Rule; Overview : The Fourth Amendment serves as the primary basis for the “ Exclusionary Rule ;” excluding evidence from the courtroom which would be otherwise admissible, when seized by law enforcement in violation of its terms.

6. Government contact not covered by the 4 th amendment

7. Consensual Encounters : General Rule : Contrary to a not uncommonly held belief that law enforcement contacts with private citizens require some articulable reason to be lawful, it is a general rule that any peace officer may approach and contact any person in public, or anywhere else the officer has a legal right to be, and engage that person in conversation without necessarily having to justify such a contact.

8. Test : Would a reasonable person under the same or similar circumstances feel that he or she is free to leave?

9. WHAT IS COVERED BY THE FORTH AMENDMENT?

10. Detentions : General Rule : A police officer has the right to stop and temporarily detain someone for investigation whenever the officer has a “ reasonable suspicion ” some criminal activity is afoot and that the person was,... is,... or is about to be involved in that criminal activity.

11. Reasonable Suspicion: “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.”

12. Purpose : “An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”

13. ARRESTS: DEFINED: THE “TAKING A PERSON INTO CUSTODY, IN A CASE AND IN THE MANNER AUTHORIZED BY LAW.” (P.C. § 834)

14. “A PERSON IS SEIZED BY THE POLICE AND THUS ENTITLED TO CHALLENGE THE GOVERNMENT’S ACTION UNDER THE FOURTH AMENDMENT WHEN THE OFFICER, ‘BY MEANS OF PHYSICAL FORCE OR SHOW OF AUTHORITY,’ TERMINATES OR RESTRAINS HIS FREEDOM OF MOVEMENT, [CITATION], ‘THROUGH MEANS INTENTIONALLY APPLIED,’

15. Standard of Proof : Requires “ Probable Cause :” “(A) police officer may arrest without (a) warrant (a person)... believed by the officer upon reasonable (or “ probable ”) cause to have been guilty of a felony (or misdemeanor).” Defined : Probable (or Reasonable ) Cause to Arrest : “Reasonable or probable cause is shown if a man of ordinary care (or caution ) and prudence (or a reasonable and prudent person ) would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty”

16. Searches and Seizures : Search : A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon. Seizure: A seizure of property occurs when there is some meaningful governmental interference with an individual’s possessory interest in that property.

17. Searches With a Search Warrant : Defined : A “ search warrant ” is “an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and bring it before the magistrate.” (P.C. § 1523)

18. Motion to Quash : Motion attacking the sufficiency of the probable cause in the warrant affidavit as it is written. (P.C. § 1538.5(a)(1)(B)) Motion to Traverse: Motion attacking the truth of the information contained in the warrant affidavit. The defendant is entitled to an evidentiary hearing (i.e., referred to as a “Franks Hearing”). Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2nd 667].)

19. Warrantless Searches : General Rule : Although the use of a search warrant when conducting any search is the general rule (see below, and “ Searches With a Search Warrant, above), under the terms of the Fourth Amendment, the search of a person, vehicle and (possibly) container without a warrant may often be justified under one or more of three legal theories:  Incident to Arrest  With Probable Cause plus Exigent Circumstances  With Consent

20. Exceptions to the Search Warrant Requirement : Aside from the three legal theories noted above, there are at least nine other justifications for the search and/or seizure of evidence without the need for a search warrant, as discussed below:  Plain Sight Observations  Plain Hearing  Plain Smell  Exigent Circumstances  Special Needs Searches and Seizures  Closely Regulated Businesses or Activities  School Searches  Airport Searches  Minimal Intrusion

21. Plain Sight Observations : A “ plain sight ” observation (or “ plain smell ” or “ plain hearing ”) is not a search, and thus does not implicate the Fourth Amendment. Rule : A plain sight observation of contraband or other evidence made while the officer is in a place or a position he or she has a lawful right to be does not involve any constitutional issues.

22. Exigent Circumstances : The presence of exigent circumstances (when combined with probable cause) will excuse the lack of a warrant. “ Exigent Circumstances ” are present, as a general rule, whenever there is no reasonable opportunity for the police officers to stop and take the time to get a search warrant. Defined : “An exigent circumstance is ‘an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.’”

23. Special Needs Searches and Seizures : An exception to the search warrant requirement, as well as the need to even show any “ individualized suspicion,” is when a search is found to serve “ special needs ” beyond the need for normal law enforcement.

24. In an attempt to get evidence of adultery by his wife so he could get a divorce, Abraham Sackler illegally forced his way into the apartment his wife was living in, separate from him. With the evidence he obtained, he applied for a divorce. His wife objected on the grounds that Sackler entered her apartment illegally and therefore, the search was unreasonable.

25. QUESTION: WAS THIS SEARCH UNREASONBLE?

26. DECISION: SACKLER v. SACKLER (1964) The search was reasonable. The 4 th Amendment applies only to governmental searches and seizures, not searches and seizures by private persons.

27. Mexican police, alerted by U.S. agents to Henry Brulay’s smuggling activities, searched Brulay’s car and house in Tijuana, Mexico and found evidence which led to his conviction. Brulay objected to the search because the Mexican police did not have a warrant and, therefore, the search was unreasonable.

28. QUESTION: WAS THE SEARCH UNREASONABLE?

29. DECISION: BRULAY v. U.S. (1967) The search was reasonable. The 4 th Amendment does not apply to officials of foreign governments.

30. Police got a warrant to arrest Archie Hill. Police went to Hill’s apartment and found there a man who fit the description,exactly, of Hill. The man claimed to be a Mr. Miller, not Hill.Nevertheless, they arrested the man as Hill and searched the apartment, finding a pistol, and a loaded ammunition clip. Police later find out that the man really was Miller, not Hill. They later arrested Hill and used the pistol found in his apartment to convict him of a robbery charge. Hill objected to the search of his apartment, since it was Miller, not Hill, that the police found there.

31. QUESTION: WAS THE SEARCH LEGAL?

32. THE DECISION HILL v. CALIFORNIA (1971) The search was legal. The police had probable cause and had acted upon that probability. The 4 th Amendment doesn’t require certainty – only probability. The police acted in good faith.

33. Police looked through three open garbage cans a few feet from the back porch of Robert Edwards’ house. They found evidence of narcotics and Edwards was arrested, tried, and convicted. Edwards objected to the search of his garbage cans an unreasonable search.

34. QUESTION: WAS A SEARCH, UNDER THESE CIRCUMSTANCES, UNREASONBLE?

35. DECISION: PEOPLE V. EDWARDS (1969) The search was unreasonable – garbage cans on a defendant’s property and garbage does not become public property until it had been picked up by sanitation workers. The police could not see the marijuana in the garbage can without rummaging through the garbage first. The police committed a trespass.

36. Following the killing of a police officer, the police arrested John Smith. They learned that Smith had been recently shot and that the bullet was still in his body. They also knew that, before he died, the police officer had shot the man who killed him. The police asked for a search warrant which would allow a police doctor to operate on Smith to remove the bullet. Smith objected on the grounds that the search would be unreasonable.

37. QUESTION: WAS A SEARCH OF THIS NATURE UNREASONBALE, CONSIDERING THE CIRCUMSTANCES?

38. DECISION: PEOPLE v. SMITH (1974) The search warrant request was denied. The operation would be an invasion of privacy. The operation was potentially dangerous and not necessary for the patient’s continued good health.

39. Police got a warrant to arrest Ted Chimel for the burglary of a coin shop. They went to his home, arrested him, and then, without a search warrant, proceeded to search the entire three-bedroom house, including the attic, the garage, and a small workshop. During the search, the police found some of the stolen coins. Chimel objected to the search. He agreed that the police had a right to arrest him, but argued that if they wanted to search his entire house, they should have gotten a search warrant.

40. QUESTION: WAS THE SEARCH LEGAL WITHOUT A WARRANT?

41. THE DECISION: CHIMEL v. CALIFORNIA (1969) A search without a warrant and incident to arrest must be limited to the suspect and the immediate area around him. The search was illegal – the police had time after the arrest to get a search warrant to search the entire house.

42. Are the following searches REASONSABLE?

44. QUESTION: WAS THE WARRANT LEGAL?

45. THE DECISION COOLIDGE v. NEW HAMPSHIRE (1971) The warrant was illegal. The issuing judge must be impartial and detached…. Not a part of the investigation and prosecution

47. QUESTION: WAS THIS AN UNREASONABLE SEARCH?

48. THE DECISION: ROCHIN v. CALIFORNIA (1952) The search was illegal. The methods used offended the court’s sense of justice.

49. Based on information they had received form an informant, the police arrested James Draper on drug charges. He objected on the grounds that because the information gotten by the police was from an informant, it was hearsay and therefore not good enough information to establish probable cause. Therefore, he argued, the search following the arrest was unreasonable.

51. QUESTION: WAS THIS SEARCH, FOLLOWING THE ARREST, REASONABLE?

52. DECISION: DRAPER v. U.S. (1959) Information obtained from a proven, reliable informant is good enough to establish probable cause in order to obtain a search warrant.

53. Willie Robinson, Jr. was arrested for driving his car after his driver’s license had been revoked. Following the arrest, Robinson was completely searched and a package containing heroin was found in an inside coat pocket. Robinson was also charged with possession of drugs.

55. QUESTION: WAS THE SEARCH OF ROBINSON LEGAL WITHOUT A WARRANT?

56. DECISION: U.S. v. ROBINSON (1973) The Supreme Court ruled, in this case, that once a police officer legally arrests a person, the officer may search that person fully, and the fact that the arrest was for a traffic offense only made no difference. However, the Court has indicated that individual states are free to set up stricter requirements regarding searches based on an arrest for a traffic offense.

57. New York State, in the decision People v. Kelly (1974), ruled that the police cannot conduct a full search of a person arrested for a traffic violation. However, a full search of a suspect may be made as incident to an arrest of any other nature.

58. Officer McFadden, a Cleveland, Ohio plainclothes detective, became suspicious of two men standing on a street corner in the downtown area at about 2:30 in the afternoon. One of the suspects walked up the street, peered into a store, walked on, started back, lolled in the same store, and then joined and talked to his companion. The other suspect repeated this behavior, and between then the two men went through this performance about a dozen times.

59. They also talked to a third man and then followed him up to the street about ten minutes after he left. The officer, thinking that the suspects were “casing” the store for stickup and might be armed, followed and confronted the three men as they were talking again. He identified himself and asked the suspects for their names. The men only mumbled something and the officer spun one of the suspects around and patted his breast pocket. He felt a pistol, which he removed. He arrested the suspect, who was charged with carrying a concealed weapon.

61. QUESTION: WAS THIS SEARCH LEGAL WITHOUT A WARRANT?

62. DECISION: TERRY v. OHIO (1968) Where a police officer observes unusual conduct which leads him to reasonably conclude that criminal activity may be, or about to be, taking place and that the persons with whom he is dealing may be armed and dangerous, he is entitled, for the protection of himself and others in the area, to conduct a carefully limited frisk of the outer clothing of such persons in an attempt to discover weapons which might be used against him.

64. QUESTION: WAS THIS SEARCH UNREASONBLE?