1
Q
The 4th Amendment has 2 major parts, it:
- Protects the right of the people to be secure from ______ and _______; and
- States that warrants must be supported by _______.
A
The 4th Amendment:
- Protects people to be secure from unreasonable searches and seizures in their home by the government; and
- States that warrants must be supported by probable cause
More Info: 4th Amendment
2
Q
What are 4 key questions you should ask when approaching a 4th Amendment question?
A
- Was there a search or seizure?
- Was the search or seizure conducted by a government actor?
- Was there probable cause?
- Was there a valid warrant? (Was the warrant defective or did the police act in bad faith?)
- Was there an exception to the warrant requirement?
3
Q
When will actions by a private individual trigger the 4th Amendment?
A
If the individual acted at the direction of a government agent or pursuant to an official policy
4
Q
What constitutes a seizure under the 4th Amendment?
A
When an officer, by show of physical force or authority, intentionally restrains the liberty of the citizen so that they are not free to leave (objective standard).
In this context, a seizure is also called an arrest.
5
Q
What factors help determine if a seizure has occured?
A
Basic Rule: If a reasonable person in D’s position would have believed he was not free to leave, it’s a seizure.
Factors include:
- Threatening presence of several officers;
- Display of weapons;
- Physical touching of person; and
- Indication that compliance with request is an order
6
Q
What is required for a valid arrest?
A
- Probable cause; and
- Warrant if:
- Suspect is in their own home or another’s home absent consent or exigent circumstances
7
Q
When is an arrest warrant NOT required?
A
If:
- Arrest is in a public place;
- Arrest is for a misdemeanor punishable by a fine and police witnessed the misdemeanor;
- Exigent circumstances exist; or
- Police had consent to enter D’s home or third party’s home
8
Q
Does an illegal arrest prevent the government from prosecuting D?
A
No, as long as police have probable cause, they may prosecute and detain D even if the arrest was illegal.
⚠️ However, evidence seized during an illegal arrest may be suppressed at trial.
9
Q
When can the police stop an automobile?
A
Must have reasonable suspicion of illegal activity, unless the stop is at a checkpoint.
10
Q
When can a private citizen make an arrest (“citizen’s arrest”)?
A
If:
- A felony has been committed; and
- Citizen has reasonable belief that the person being arrested committed it
⚠️ Note: Can be used as a defense if citizen used reasonable force to detain until police arrived.
11
Q
What is the two-prong test identified in Katz to determine whether or not there was a search?
A
- Did the defendant have a reasonable expectation of privacy?; and
- Was the expectation one that society recognizes as reasonable?
If yes, the search is protected by the 4th Amendment.
12
Q
When does a reasonable expectation of privacy exist under the 4th Amendment?
A
When:
- An individual has a subjective expectation of privacy in the thing searched; and
- Expectation is one society recognizes as reasonable
⭐️ Viewed in totality of the circumstances
13
Q
List examples of when there is no reasonable expectation of privacy.
A
- Objects knowingly exposed to the public;
- Smells emanating from personal belongings;
- Car VIN #’s;
- Handwriting samples;
- Voice exemplars;
- DNA samples;
- Bank records;
- Phone call records;
- Conversations with government informants;
- Open fields;
- Airspace above property higher than 400 feet
- Naked-eye observations of private property; and
- Discarded property
14
Q
What is considered one’s home for the purposes of the 4th Amendment?
A
- Home/dwelling itself; and
- Curtilage (area surrounding the home). Whether or not area is curtilage depends on:
- Proximity of the area to the home;
- Whether the area is within an enclosure surrounding the home;
- The nature and uses to which the area is put; and
- Steps taken by the resident to protect the area from observation by passersby
15
Q
Are open fields surrounding the home considered curtilage?
A
No, even if the area is fenced and has “No Trespassing” signs.
16
Q
Does an overnight guest in someone’s home have a reasonable expectation of privacy?
A
Yes, as long as the premises aren’t being used for an illegal purpose
17
Q
Does an overnight guest in a hotel have a reasonable expectation of privacy?
A
Yes. A hotel clerk cannot consent to the search.
18
Q
What is the Third Party Doctrine and its effect?
A
An individual who freely shares information with a third-party (e.g. banks, phone companies, or internet service providers) has no reasonable expectation of privacy for that information
⚠️ Exception: Cell Phone Tracking Data (Carpenter v. United States)
19
Q
Does aerial surveillance of D’s property with a plane or helicopter constitute a search?
A
If the surveillance is at a height greater than 400 feet, D likely has no reasonable expectation of privacy and thus no search occurred.
20
Q
Does placing a tracker on D’s vehicle or other private property constitute a search?
A
Yes, if police physically intruded on D’s property to install the tracker.
21
Q
Does using animals (e.g. drug-sniffing dogs) to search for contraband constitute a search?
A
Yes, if it intrudes upon a constitutionally protected area (i.e. home, curtilage, person)
22
Q
What are the requirements for a valid warrant?
A
Warrant must be:
- Based on probable cause;
- Supported by oath or affidavit
- Describe with particularity the thing/person to be seized and place to be searched; and
- Be issued by a neutral and detached magistrate
23
Q
The scope of a warrant is limited to:
A
Only the premises, person, or items described in the warrant
24
Q
Are warrants needed for each person to be searched?
A
Yes, there must be an independent basis to search each person; just because they are in the same room doesn’t mean the search is valid (absent exigent circumstances).
⚠️ Note: Police can detain subjects not included in the warrant, but they cannot search them.
25
What are 8 **exceptions** to the warrant requirement?
Common Acronym = ESCAPIST
1. Exigent circumstances;
2. Searches incident to lawful arrest;
3. Consent;
4. Automobile search
5. Plain view search;
6. Inventory search;
7. Special needs;
8. Terry stop and frisk;
## Footnote
⭐️ The MBE likes you to trick you on these. **Memorize these exceptions!**
26
When does **probable cause** exist?
If the quantity of facts and circumstances would lead a reasonable person to conclude that either:
1. The individual in question has committed a crime; or
2. Specific items related to criminal activity can be found at that particular location
## Footnote
*More info:* [Probable Cause](https://www.law.cornell.edu/wex/probable_cause)
27
Probable cause for a warrant must be supported by what type of **facts**?
Facts based on either:
1. Verifiable and reliable information from an informant;
2. Seized evidence; or
3. Observations by law enforcement (police are presumed to be reliable sources)
28
When is an **informant tip** considered **sufficiently reliable** to establish probable cause?
Courts weigh:
1. The **credibility** of the information;
2. The **reliability** of the informant;
3. **Corroboration** by the police; and
4. An informant's **declaration against interest**
## Footnote
See [*Illinois v. Gates*](https://en.wikipedia.org/wiki/Illinois_v._Gates)
29
What is the **remedy** if police act pursuant to an **invalid warrant**?
Evidence obtained during an unlawful search will be **inadmissible** pursuant to the Exclusionary Rule.
## Footnote
⚠️ Exception: Evidence is **not excluded** if police officers relied upon the warrant in **good-faith**.
30
When does the **good-faith exception** to the Exclusionary Rule **not apply**?
If either:
1. No **reasonable** officer **would have relied** upon the warrant;
2. The warrant is **facially defective**;
3. The officer **lied or misled** the magistrate to obtain the warrant;
4. The magistrate issuing the warrant was **not neutral and unattached**; or
5. The warrant was **improperly executed**
31
**Who** can execute a warrant and within what **time frame**?
Only the **police** may execute a warrant. Must be executed **promptly** while probable cause still exists.
32
What is the "**knock and announce"** rule?
Absent exigent circumstances, the police must **knock and announce their identity** before entering a home to execute a warrant
## Footnote
*More Info:* [Knock and Announce](https://www.law.cornell.edu/wex/knock-and-announce_rule)
33
When are police **not required** to "knock and announce"?
When police have reasonable suspicion that doing so will:
1. **Endanger officers**;
2. Lead to the **destruction of evidence**; or
3. Lead to **flight of the suspect**
34
If police violate the "**knock and announce"** rule, what happens to **evidence** discovered during the search?
**Still admissible.** Exclusionary Rule does not apply.
## Footnote
See *[Hudson v. Michigan](https://www.oyez.org/cases/2005/04-1360).*
35
What is the **exigent circumstances** exception to the warrant requirement?
Police may search without a warrant if **waiting** to obtain a warrant will result in imminent:
1. **Destruction** of evidence;
2. **Escape** of the accused; or
3. **Danger** to police or others in the area
## Footnote
*More Info:* [Exigent Circumstances](https://www.law.cornell.edu/wex/exigent_circumstances)
⚠️ Note: Not applicable if **police create the exigent circumstances** so they can bypass the warrant requirement
36
What are police allowed to do when in **hot pursuit**?
If the suspect is a ***felon***, the police may:
1. **Enter** and **search a private dwelling**;
2. Conduct a **warrantless arrest** of the suspect on the premises; and
3. **Seize** any contraband in plain view
## Footnote
⚠️ [*Lange v. California*](https://www.oyez.org/cases/2020/20-18) (2021) held that a fleeing **misdemeanor** suspect does not automatically create an exigent circumstance. It is unclear whether the MBE will test this case, but be prepared.
37
Can police perform **warrantless blood tests** on drunk drivers?
Yes, only under the exigent circumstances exception if:
1. **BAC evidence is dissipating** (“literally disappearing by the minute") and;
2. Some other factor creates **pressing health, safety, or law enforcement needs** that would take priority over a warrant application
## Footnote
[⚠️](https://www.law.cornell.edu/supremecourt/text/18-6210)Note: This is used in extremely narrow circumstances; the driver essentially needs to be unconscious/physically incapable of a breath test. See [*Mitchell v. Wisconsin (2019)*](https://www.law.cornell.edu/supremecourt/text/18-6210)
38
What is a **Terry Stop** (also known as a "stop and frisk")?
A brief investigatory seizure by the police when there is **reasonable suspicion of criminal activity**.
## Footnote
*More Info:* [Terry Stop](https://www.law.cornell.edu/wex/stop_and_frisk)
⚠️Note: Terry Stops are not arrests, but rather a brief detainment by the police. As such, probable cause is not required, only reasonable suspicion (lower bar). However, if the officer's suspicion is confirmed, it may turn into probable cause to arrest.
39
# Define:
reasonable suspicion
Reasonable belief based upon **articulable information** (more than a mere hunch) that the suspect **has or is about to engage in illegal or criminal activity**
40
What is the permissible **duration** of a **Terry Stop**?
Time necessary to **confirm or deny** the police officer's suspicion
41
When is a police officer allowed to "**frisk**" a suspect?
If they have reasonable suspicion that the suspect is **armed** and **dangerous,** the officer can conduct a **limited** search of the suspect
42
What is the **scope** of a "frisk"?
Police are only allowed to do a quick **pat-down** of the suspect's **outer clothing** for weapons. Cannot manipulate items.
43
What is the "**plain feel**" exception to a Terry Stop?
If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon
44
What is the "**Plain-view"** doctrine?
A warrant is not required to seize an item if:
1. The police are on the premises **lawfully** when they observe the item; and
2. The **incriminating** nature of the item is **immediately** apparent (police may not move objects to get a better view)
## Footnote
*More Info:* [Plain View Doctrine](http://law.justia.com/constitution/us/amendment-04/20-plain-view.html)
45
Do **smells** fall under the "Plain-view" doctrine?
Yes, if police have probable cause to believe the smell is from **contraband**, they can search the **item where the odor is coming from**
46
What is a **search incident to lawful arrest** ("SILA")?
Warrantless search of an arrestee and the area **within their immediate control** (wingspan, lunging area) during a **lawful arrest**
47
If police have a reasonable suspicion that **accomplices may be in the home**, what actions can they take?
The police can conduct a **cursory protective sweep** of spaces where people may hide (closets, under the bed, etc)
48
What is the **duration** of a search incident to lawful arrest?
**Contemporaneous** with or **immediately after** the arrest
49
Pursuant to a search incident to lawful arrest, can police search **pockets and containers**?
Yes, as long as they are within the suspect's reach and large enough to hold contraband or weapons
50
Pursuant to a search incident to lawful arrest, can police search the arrestee's **vehicle**?
Yes, if:
1. Arrestee has **access** to the vehicle compartments;
2. There is a reasonable belief arrestee may **destroy evidence** or pose a **danger to the officers**; and
3. There is reasonable belief that the vehicle contains **evidence of a crime**
51
What is an **inventory** search?
Constitutional, warrantless search of an arrestee's belongings once they are jailed
52
What is the **automobile exception** to the warrant requirement?
Police may search an automobile and persons within it without a warrant as long as they have **probable cause**.
Police can search **any locked containers in the vehicle and the trunk** if the areas could reasonably hold the evidence sought (i.e. have probable cause to do so)
## Footnote
Also applies to motor homes, boats, and airplanes.
53
Does the automobile exception apply to **vehicles incapable of movement**?
No, because the danger of the evidence being removed is significantly diminished
54
Which types of **checkpoints** are permissible?
1. **Sobriety** checkpoints;
2. Checkpoints **at or near the border**; and
3. Checkpoints to **obtain information about a recent crime**
## Footnote
⚠️ Checkpoints to test for drugs are **not valid**
55
If a checkpoint is to **obtain information about a crime**, what requirements must it follow?
1. Checkpoint's **primary purpose** is help law enforcement **investigate a crime and advance a public concern**;
2. The cars are stopped in a **neutral manner**; and
3. Checkpoint minimally interferes with 4th Amendment rights
56
Are **border** searches allowed?
Yes, officials may search anyone at or near the border (including international airports and ports) in a routine manner without a warrant, or probable cause, or reasonable suspicion
57
What is the **consent exception** to the warrant requirement?
If a person **voluntarily consents** to a search, no warrant or probable cause is needed.
Whether or not a person has consented is determined in light of the totality of the circumstances.
58
What constitutes **invalid consent** for a warrantless search?
Consent that was gained by:
1. Asserting a **fake** warrant; or
2. An unlawful police **threat** (a threat to do something that the officer has no authority to do)
59
Are the police required to **inform** someone of their ability to **refuse consent**?
No
60
If a person has consented to a search, who determines the **scope** of the search?
The person who consented to the search. Exceeding the scope will make the entire search invalid.
61
Who has **authority** to consent to a search?
Any person who has **joint control or use of shared premises** (e.g. roommate, spouse)
62
Does a **third party** have authority to consent to a search?
Yes, if:
1. The third party **owns or occupies** the home; or
2. The third party and D **jointly own or occupy** the home and **D is not present** (valid even if D had previously objected at another time)
## Footnote
⚠️ Note: If D is home and **objects** to the third party giving consent, the third party consent is not valid
63
Can a **landlord** give consent to search a tenant's residence?
No
64
Can an **employer** give consent to search an employee's private storage area?
No
65
# Define:
administrative search
Search carried out by **regulatory bodies** to enforce compliance with administrative regulations and/or health and safety codes
66
When is an **administrative warrant** required for an **administrative search**?
Generally required for administrative fire, health, or safety inspections of **residential** or **private commercial** property.
67
What is needed for an **administrative warrant** to be issued?
Either:
1. Probable cause that an **administrative violation** has occured; or
2. Evidence that establishment has been **selected to be inspected**
## Footnote
⚠️ Note: Probable cause standard is less stringent than for **criminal investigations**
68
Can the police open **international mail**?
Yes, as long as the police have **probable cause** to do so
69
Is **criminal evidence** found during an administrative search admissible?
Yes, as long as the search was executed pursuant to a warrant, or the search was a valid, warrantless search
70
When are searches of **public school students** allowed?
1. Police have a **moderate chance** of finding contraband (lower bar than probable cause);
2. Search methods are **reasonably related to the purpose** of the search; and
3. Search is **not excessively intrusive**
71
# Define:
Exclusionary Rule
Holds that evidence obtained in violation of D's **4th, 5th, or 6th Amendment** rights is **inadmissible** at *criminal trials* to prove **D's guilt**
## Footnote
*More info:* [Exclusionary Rule](https://www.law.cornell.edu/wex/exclusionary_rule)
72
The exclusionary rule does not apply to **which type of proceedings**?
* Grand jury proceedings;
* Civil proceedings;
* Administrative proceedings; and
* Sentencing, bail, and parole hearings
73
What are the **exceptions** to the **Exclusionary Rule**?
Evidence may still be admissible if it falls underneath these exceptions:
1. **Independent source:** Evidence is discovered by an independent source;
2. **Attenuation:** Relationship between the primary taint and discovery of evidence is sufficiently attenuated as to **break the causal chain**;
3. **Inevitable discovery:** Evidence would have been **inevitably** discovered through legal means
4. **Good faith:** Exists when police officers were acting in **good faith** on a warrant that was **later** declared **invalid** (*see more:* [Good Faith Exception](http://www.law.cornell.edu/wex/good_faith_exception_to_exclusionary_rule))
5. **Impeachment**: Illegally obtained evidence may be used to **impeach** D at trial
74
# Define:
Fruit of the Poisonous Tree doctrine
Holds that any **evidence obtained from an illegal search is tainted** and thus subject to the **exclusionary rule** unless an exception applies.
## Footnote
*More Info:* [Fruit of the Poisonous Tree Doctrine](https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree)
75
Is **physical evidence** seized as the result of an **illegal confession** (i.e. one in violation of *Miranda*) admissible?
Yes, physical evidence obtained from a confession that violated *Miranda* is **still admissible** at trial.
## Footnote
Ex. During an illegal interrogation, D tells police that a gun is hidden under the bed. The gun is still admissible at trial.
76
What are **wiretaps**?
Monitoring of electronic communications; require a warrant (except for certain national security purposes)
## Footnote
*More info:* [Electronic Surveillance](https://www.law.cornell.edu/wex/electronic_surveillance)
77
What are the **warrant requirements** for a **wiretap**?
The warrant must:
1. Demonstrate **probable cause;**
2. **Name** the person going to be wiretapped;
3. **Contain specific details** about the conversations that will be overheard;
4. Explain how the wiretap will be **terminated;** and
5. Be limited to a **brief period of time**
