Ch10

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Ch10

  1. 1. CONDUCTING CONSTITUTIONAL SEARCHES Chapter 10
  2. 2. Tenets of 4th Amendment Search Analysis  Cases involving the 4th Amendment begin with two basic questions: 1. Have the fundamental constitutional rules been met? 2. Does the search fit within one of the permissible realms?
  3. 3. Tenets of 4th Amendment Search Analysis  What are the fundamental rules? 1. There must be governmental action 2. The person making the challenge must have standing, that is, the conduct violates the challenger’s reasonable expectation of privacy   a situation in which (1) a person has exhibited actual (subjective) expectation of privacy and (2) that expectation is one that society is prepared to recognize as reasonable Often an implied right that falls within the shadow of other specified rights (penumbra) 1. General searches are unlawful and restrict government from going beyond what is necessary
  4. 4. The Scope of Searches    Unrestrained general searches offend our sense of justice All searches must be limited in scope General searches are unconstitutional and never legal
  5. 5. The Scope of Searches  M rro n v. Unite d Sta te s (1927) a   “The requirements that the warrants shall particularly describe the things to be seized makes general searches under tem impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left o the discretion of the officer executing the warrant.” Can’t look for an elephant in a matchbox!
  6. 6. Searches with a Warrant  All searches with a warrant must be based on:     Probable cause Supported by oath and affirmation Particularly describing the place to be searched, and The persons or things to be seized
  7. 7. Executing the Warrant    After officers have obtained their search warrant they must execute it in a timely manner They must not use excessive force to execute the warrant There is limited authority to detain the occupants of the premises during the search
  8. 8. Conducting the Search    Officers can only search the areas where they reasonably believe the specified items might be found If the warrant states only one specific item be sought, once it is located, the search must end Officers often are protected with qualified immunity  Exemption of a public official from civil liability for actions performed during the course of his or her job unless they violate a “clearly established” constitutional or statutory right
  9. 9. Conducting the Search  The government can also seize any contraband or other evidence of a crime found during a search with a warrant, even though it was not specified   Contraband is anything that is illegal for people to own or have in their possession The contraband does not need to be described in the warrant or be related to the crime described in the warrant  Plain view doctrine
  10. 10. Administrative Warrants  Allows civil inspections of private property to determine compliance with government rules, regulations and city ordinances   Examples include fire building codes These can also be obtained so government agents can conduct routine inspections when occupants refuse their entry
  11. 11. Administrative Warrants  Unite d Sta te s v. Bis we ll (1972)   The Supreme Court reversed a court or appeals ruling that disallowed a warrantless search of a gun shop’s locked storeroom, which netted illegal firearms Inspections pertaining to the sale of illegal firearms are justified and that limited threats such as this inspection to the gun dealer’s expectation of privacy are reasonable
  12. 12. Searches without a Warrant   The 4th Amendment prefers a warrant because it necessitates judicial review of government action The Supreme Court has defined some searches without a warrant to be reasonable under the 4th Amendment guidelines:  Consent search, frisks, plain feel/plain view, incident to arrest, automobile exception, exigent circumstances, open fields, abandoned property and public places
  13. 13. Searches with Consent  If an individual gives voluntary consent for the police to search, the police may so without a warrant  Any evidence found will be admissible in court  The person may revoke the search at anytime
  14. 14. Searches with Consent    Only the person whose constitutional rights might be threatened by a search can give consent 4th Amendment rights are specific to the person and may not be raised on behalf of someone else or in some abstract, theoretical way Consent to search an individual must be given by that individual
  15. 15. Searches with Consent  Unite d Sta te s v. M tlo c k (1974) a  Consent to search any property must be given by the actual owner  If more than one persons owns a property, only one needs to give permission  In some instances, someone else can give consent  Parent/child, employer/employee, host/guest, spouses
  16. 16. Searches with Consent  G e o rg ia v. Ra nd o lp h (2006)   When both occupants are present and one objects to a search, the other cannot “override” the co-occupants refusal I is v. Ro d rig ue z (1990) llino  There is not 4th Amendment violation if the police reasonably believed at the time of their entry that the third party possessed the authority to consent
  17. 17. Searches with Consent  Examples of instances when individuals cannot give valid consent to search:  Landlord/tenant  Even though the landlord is the legal owner, they lack the authority to offer consent to a search of a tenant’s premises or a seizure of the tenant’s property  Hotel employee/hotel guest  Supreme Court extended the principles above to hotel employees as well  Only the tenant or hotel guest can give consent
  18. 18. Searches with Consent  Sta te v. Ba rlo w, Jr. (1974)   A consent to search is unreasonable under the 4th Amendment if the consent was induced by deceit, trickery, or misrepresentation of the officials making the search Failure to give consent cannot be used to establish probable cause
  19. 19. Searches with Consent  We e d s v. Unite d Sta te s (1921)    Police confronted the defendant with drawn guns and a riot gun and said they would get a warrant if they needed The Court said consent given under these conditions was not free and voluntary Pe o p le v. Lo ria (1961)  Police threatening to kick down the door of the defendant’s apartment if they did not let them in, was not free and voluntary
  20. 20. Searches with Consent    Consent to search must be voluntary The search must be limited to the area specified by the person granting the permission The person may revoke the consent at any time
  21. 21. Searches with Consent  Courts typically justify the consent exception by two separate tests:  Voluntariness test The consent was obtained without coercion or promises and was reasonable   Considers the totality of the circumstances to determine is the consent was voluntary W aiver test Citizens may consent to waive their 4th Amendment rights, but only if they do so voluntarily, knowingly, and intentionally
  22. 22. Searches with Consent     Although consent may be revoked at any time, if contraband was found before the revocation of consent, then Probable cause to arrest that person may then exist and, A search incident to arrest could ensue or, The police might cease their search, secure the property, detain those present and seek a warrant
  23. 23. Frisks    If an officer suspects a person is presently armed and dangerous, a frisk may conducted without a warrant (Chapter 8) A frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized Factors contributing to the decision to frisk include:  Suspect that flees  A bulge in the clothing  Suspect’s hand concealed in a pocket  Being in a known high crime area and suspect crime would likely involve a weapon
  24. 24. Frisks   Anything that reasonably feels like a weapon may then be removed and used as evidence against the person if it is contraband or other evidence Plain feel is also considered acceptable in a frisk
  25. 25. Plain Feel/Plain Touch  M inne s o ta v. Dic ke rs o n (1993)    The Court ruled that police do not need a warrant to seize narcotics detected while frisking a suspect for concealed weapons As long as the narcotics are instantly recognizable by plain feel or plain touch Ultimately, if, in the lawful course of a frisk, officers feel something that training and experience causes them to believe is contraband, there is probable cause to expand the search and seize the object
  26. 26. Plain View Evidence  The plain view doctrine says that unconcealed evidence that officers see while engaged in a lawful activity may be seized and is admissible in court  For example, if a government official is invited into a person’s home, and the officer sees illegal drugs on the table, the drugs can be seized
  27. 27. Plain View Evidence    Technology is impacting 4th Amendment case law Thermal imaging devices Ky llo v. Unite d Sta te s (2001)   Was a search warrant needed for police to scan a home from the street and compare that infrared image to other buildings? This action is considered a search under the Fourth Amendment and requires a warrant
  28. 28. Searches Incident to Lawful Arrest  Once a person has been lawfully taken into custody by the police, U.S. law recognizes the necessity of permitting a complete search for two reasons: 1. 2. Officer safety Evidence and other contraband should be recovered
  29. 29. Searches Incident to Lawful Arrest  Chim e l v. Ca lifo rnia (1969)  Searches after an arrest must be immediate and must be limited to the area within the person’s wingspan  The  area within a person’s reach or immediate control Sc hm e rbe r v. Ca lifo rnia (1966)  Absent the exigent circumstances, a search intrusive as drawing blood would not be permissible without a warrant
  30. 30. Searches Incident to Lawful Arrest  Co m m o nwe a lth v. Ta rve r (1975)   Seizures of items from the body like hair samples or finger nail clippings are allowed without a warrant incident to arrest if reasonable and painless procedures are used Unite s Sta te s v. Finle y (2007)  The numbers on a cell phone are “searchable” incident to a lawful arrest
  31. 31. Searches Incident to Lawful Arrest   The issue of remoteness may also determine whether a search is unreasonable Unite d Sta te s v. Cha d wic k (1977)  The Court held that a search of seized luggage not immediately associated with the arrestee’s body or under his or her immediate control will not be allowed if that search is remote in time and place from the arrest and no emergency exists
  32. 32. Searches Incident to Lawful Arrest  A protective sweep is a limited search made in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene
  33. 33. Use of Force in Searching an Arrested Person  When government agents search a person incident to arrest, they may use as much force as reasonably necessary to  Protect themselves,  To prevent escape,  Or the destruction or concealment of evidence  The reasonableness of the police action determines the lawfulness of it
  34. 34. Searching People Other Than the Arrested Person     Searches of people who accompany an arrestee are limited to a frisk When the officers reasonably believe the companion may be dangerous or might destroy evidence They must also be in the immediate area of the arrest The area of under the companion’s immediate control may also be searched
  35. 35. Searching the Vehicle of an Arrested Person  N w Yo rk v. Be lto n (1981) e  Landmark case for the warrantless search of a vehicle incident to arrest  Court held that when an officer has made a lawful custodial arrest of the occupant of an automobile, he may search the passenger compartment  He may also examine the contents of any containers found within the compartment  If the container is within reach of the arrestee, so also will containers in it be within his reach
  36. 36. Searching the Vehicle of an Arrested Person  Kno wle s v. I wa (1998) o    Justification to conduct a warrantless search of a vehicle is not present when the vehicle has been stopped for a traffic violation and the driver is merely issued a citation Only a lawful custodial arrest justifies a warrantless search incident to arrest Merely having probable cause to arrest, or issuing a citation when an actual arrest does not occur, does not justify a search
  37. 37. Inventory Searches    Suspects to be jailed are subjected to a warrantless search This search serves two purposes: 1. It protects the prisoner’s personal property in that the property is all listed and then held in a safe place until the prisoner is released 2. It protects the officers and other prisoners and helps to ensure that no weapons or illegal drugs will be taken into the jail An impounded vehicle can be inventoried for the same reasons
  38. 38. The Automobile Exception   This exception states that if a governmental agent has probable cause to believe the vehicle contains contraband or evidence or a crime, no warrant is needed Why?   Cars are mobile The time it would take to get a warrant, the car, driver and contraband or evidence could be long gone
  39. 39. The Automobile Exception  Ca rro ll v. Unite d Sta te s (1925)  Established that vehicles can be searched without a warrant provided 1. 2.  There is probable cause to believe the vehicle’s contents violate the law The vehicle would be gone before a search warrant could be obtained For officer to search a vehicle without a warrant, the must have probable cause to believe that the vehicle contains contraband or evidence
  40. 40. The Automobile Exception  Unite d Sta te s v. Ro s s (1982)   “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search Unite d Sta te s v. He nry (1980)   One the items are located, the search must terminate While searching for such articles, the officer discovers evidence of another crime, he can seize that evidence too
  41. 41. Inventory Searches of Impounded Vehicles     Police officer can legally tow and impound vehicles for many reasons Once the vehicle is impounded, the police conduct an inventory search Because the vehicle is in police custody, officers have a duty to assure personal property is accounted for If contraband or evidence is found, it will be admissible in court
  42. 42. Inventory Searches of Impounded Vehicles  Co lo ra d o v. Be rtine (1987)  Required that police agencies to have a policy mandating either that all containers be opened during such searches or that no containers be opened, leaving no room for officer discretion
  43. 43. Exigent Circumstances   The courts have recognized that sometimes situations will arise that reasonably require immediate action before evidence may be destroyed These circumstances include:      Danger or physical harm to officer or others Danger or destruction of evidence Driving while intoxicated Hot-pursuit situations Individuals requiring rescuing
  44. 44. Exigent Circumstances  Hot Pursuit   Involve pursuit of a suspect into a place that typically holds a reasonable expectation of privacy, such as one’s home Must be immediate and continuous from the crime scene
  45. 45. Exigent Circumstances  Emergency Aid Doctrine   Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or immediately threatened with injury If police come across an unconscious person, they are obligated to search:  The person’s pockets or purse for  Identification or medical information
  46. 46. Open Fields, Abandoned Property and Public Places  The courts have extended the plain view doctrine stating that anything held out to the public is not protected by the 4th Amendment because no reasonable expectation of privacy exists
  47. 47. Open Fields, Abandoned Property and Public Places  “Open fields”- holds that land beyond that normally associated with the use of that land, that is, undeveloped land, can be searched without a warrant  ‘no trespassing” signs do not bar public from viewing open fields, therefore the owner should have no expectation of privacy and the 4th Amendment does not apply
  48. 48. Open Fields, Abandoned Property and Public Places  Curtilage- is the portion of property generally associated with the common use of land   Buildings, sheds, outhouses, and fenced-in areas Because there is a reasonable expectation of privacy within the curtilage, it is protected under the 4th Amendment
  49. 49. Open Fields, Abandoned Property and Public Places  Ca lifo rnia v. Cira o lo (1986)   Police looking from the air into a suspect’s backyard does not violate the 4th Amendment because it is open to public view from the air After a person has discarded or abandoned property, they maintain no reasonable expectation of privacy  Something thrown from a car, discarded during a chase or even garbage disposed becomes abandoned property and police may inspect it without a warrant
  50. 50. Open Fields, Abandoned Property and Public Places  Ca lifo rnia v. G re e nwo o d (1988)   Warrantless search and seizure of trash left curbside for collection in an area accessible by the public does not violate a person’s 4th Amendment right Unite d Sta te s v. G a rc ia (1994)  A district court held that using a drug-detecting dog in an Amtrak station did not violate the defendant’s 4th Amendment right because the defendant should have no expectation of privacy in the air surrounding his bags
  51. 51. Border Searches and Seizures   Searches or persons, belongings and vehicles at international borders are reasonable under the 4th Amendment Unite d Sta te s v. M nto y a d e He rna nd e z o (1985)   Routine searches at a U.S. international border require no objective justification, probable cause or warrant Quino ne s -Ruiz v. Unite d Sta te s (1994)  The border search exception applies equally to persons entering or exiting the country
  52. 52. Border Searches and Seizures   The Court has ruled that routine searches at borders and at international airports are reasonable under the 4th Amendment The farther a person gets from the border, the more traditional search and seizure requirements come back into play
  53. 53. Border Searches and Seizures   People at airports are increasingly being stopped because they fit a drug courier profile developed by the D.E.A. There are seven characteristics: 1. Arriving from a source city 2. Little or no luggage 3. Rapid turnaround on airplane trip 4. Use of assumed name 5. Possession of large amounts of cash 6. Cash purchase of ticket 7. Nervous appearance
  54. 54. Special Needs Searches  These are limited searches that the court considers reasonable because societal needs are thought to outweigh the individual’s normal expectation of privacy:       Prison Probation and parole searches Drug testing for certain occupations Administrative searches of closely regulated businesses Community caretaking searches Public school searches
  55. 55. Public School Searches     Most searches of students in public schools are conducted by school officials (government agents) Officials may search a student (backpack) or locker without a warrant or probable cause if there is reasonable suspicion to suggest that contraband is present at the point to be searched School officials have a responsibility to maintain a safe environment for students
  56. 56. Prison, Probation, and Parole Searches    Prisoners have constitutional rights, but they are limited Searches are a reasonable part of prison life among inmates who have very little expectation of privacy How the searches are carried out can conceivably challenge the reasonableness of the 4th Amendment
  57. 57. Prison, Probation, and Parole Searches  M o re v. Pe o p le (1970) o   Court rules that searches conducted by correctional personnel are not unreasonable as long as they are not for the purpose of harassing or humiliating the inmate in a cruel and unusual manner Searches are also conducted on visitors, correctional officers and others as these individuals may smuggle contraband to inmates
  58. 58. Prison, Probation, and Parole Searches  Turne r v. Sa fle y (1987)   Supreme Court ruled and upheld correctional policy allowing cross-gender searches Jo rd a n v. G a rd ne r (1993)  Female inmates subjected to unclothed body searches by male officers had, in fact, been subjected to an unconstitutional search
  59. 59. Prison, Probation, and Parole Searches    Not all people convicted of crimes are sent to prison Convicted criminals do not lose their rights entirely Their rights are limited, but not forfeited
  60. 60. Prison, Probation, and Parole Searches  G riffin v. Wis c o ns in (1987)  Supreme Court held that a probationer’s residence could be searched by a probation officer if there were reasonable grounds to believe contraband was present  People on probation have constitutional rights  Supreme Court affirmed that government actions must be reasonable
  61. 61. Prison, Probation, and Parole Searches  Unite d Sta te s v. Knig hts (2001)  Supreme Court addressed the constitutionality of whether a police officer could search a probationer’s home without probable cause or reasonable suspicion  The search was reasonable under the 4th Amendment because of the government’s interest in regulating and monitoring probationer’s behavior
  62. 62. Prison, Probation, and Parole Searches   The Griffin and Knight cases make it clear that individuals on parole or probation have a lesser reasonable expectation of privacy Both cases involved searches based on reasonable grounds
  63. 63. Prison, Probation, and Parole Searches  Unite d Sta te s v . Le o na rd (1991)   Unite d Sta te s v . Tho m a s (1984)   Requiring a drug test of people on parole or probation for drug offenses is reasonable A parole officer was permitted to require the client to remove his jacket to show fresh needle marks, with a subsequent search of his clothes netting drugs that were admissible as evidence Both searches were also based on recognition that such searches were conditions of parole
  64. 64. Searches of Public Employee Work Areas   Employees have a degree of interest in retaining some privacy but it is lessened in the public workplace context These searches only require reasonableness
  65. 65. Electronic Surveillance, Privacy Interests and the 4th Amendment  O lm s te a d v. Unite d Sta te s (1928)   Wiretapping was not a search within the meaning of the 4th Amendment because neither was there physical invasion onto someone’s property nor was there a taking of tangible items Ka tz v . Unite d Sta te s (1967)  Overturned Olmstead’s decision, holding that such an intrusion into people’s lives does violate an expectation of privacy, and that a search had, indeed, occurred  Supreme Court agreed, holding that any form of electronic surveillance that violates a reasonable
  66. 66. Electronic Surveillance, Privacy Interests and the 4th Amendment    Electronic eavesdropping to searches of people, their luggage, where they live, and their bodies, homes, hotel rooms, businesses, obtaining evidence from a person’s body (urine testing), or surgical removal of a bullet lodged within a person are all cases that have been held to constitute searches under the 4th Amendment In each case, the person has a reasonable expectation of privacy As such, a warrant is generally required
  67. 67. Electronic Surveillance, Privacy Interests and the 4th Amendment  Title III of the Omnibus Crime Control and Safe Streets Act of 1965   Prohibits the interception of phone conversations unless one party to the conversation consents To obtain an electronic-surveillance warrant, or wiretap order, probable cause that a person is engaging in particular communications must be established by the court, and normal investigative procedures must have already been tried
  68. 68. Electronic Surveillance, Privacy Interests and the 4th Amendment  The application for such a warrant or wiretap must be very detailed  Included is why less intrusive means are not practical  Show that other investigative means have been attempted  The judge must find probable cause  Is only effective for no more than 30 days  Recording must be provided to the judge who issued the order, who has control over them
  69. 69. Electronic Surveillance and the 4th Amendment   The Supreme Court has ruled that the expectation of privacy does not exist when someone voluntarily converses with someone else- “unreliable ear” exception The Supreme Court has ruled that the expectation of privacy does not exist when someone converses in public because others may hear- “uninvited ear” exception
  70. 70. Electronic Surveillance and the 4th Amendment   Title III also regulates use of electronic devices to tap or intercept wire communications These devices are legal under only two conditions: 1. 2. A court order authorizes the wiretap One person consents to the wiretap
  71. 71. The Electronic Communications Privacy Act    Government does have an interest in ensuring people’s privacy from others and thus they passed the Electronic Communications Privacy Act in 1986 Prohibits anyone from intentionally intercepting or endeavoring to intercept any wire, oral, or electronic communication by someone not a part of that communication Cases are now heading to the courts that look at email, texts, and other cell phone information retained by cellular companies and if they can be viewed without the permission of those sending and receiving them
  72. 72. Balancing Security Concerns with Privacy Interests    Since 9/11, security concerns have conflicted with privacy concerns The use of GPS tracking has become an issue in several states Cases are now being litigated throughout the country
  73. 73. Current Events United States vs. Jones (2012)    Landmark ruling in applying the 4th Amendment protections to advances in surveillance technology Prosecutors violated Jones’ rights when they attached a GPS device to his vehicle and monitored his movements for 28 days Using GPS technology without a warrant is risky for law enforcement

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