This is a draft cheat sheet. It is a work in progress and is not finished yet.
What is a Search?
1. Right Actor
Government Actor. 14th Amendment
2. Right Target
Verdugo-Uquidez: Even non-citizen. Person with a meaningful connection with the U.S. Community
3. Is it a search?
-Protects Persons, Houses, Papers, Effects from unreasonable searches and seizures (Arbitrary Gov't Intrusion)
-4th Amdt applied to states via the 14th Amdt DP Clause
Whether police collection of (evidence) is a search because if a search, need warrant first or presumptively unreasonable.
Presumptively unreasonable in the absence of a warrant
Two tests whether or not a search:
1. Jones: Trespass plus intent to obtain information
2. Katz (Harlan's concurring opinion): Reasonable expectation of privacy subjectively held.
2. Intent to obtain information
Highlight length of search and how intimate details of one's life are revealed when GPSed for 28 days, hence crossing line of REOP.
Phone records turn into a search because of the huge amount of data (life details) that could be revealed. Privacy shouldn't be treated as a discrete commodity.
1. Subjective Expectation of Privacy
2. Reasonable Expectation of Privacy
Katz majority, Maryland v. Smith
What one knowingly exposes to the public is not protected by the 4th amendment because no REOP in what one knowing exposes
1. Site ex) home
2. Steps taken to keep information private. Not knowingly exposing oneself to the public.
3. Degree of intrusion
2.No REOP when one is knowingly exposed to the public
1. White v. Maryland: in that knowingly giving telephone numbers dialed to phone company hence pen register capture of that data (metadata) is not a search because the phone co. is a 3rd party
->assumption of risk
2. Knotts: which found knowing exposure of movements on public road to not constitute a search
3. Karo: found that beeper identifying movement of canister inside a home was a search
Thermal Imager is a
1. Trespass 2. Intent to obtain information is a search
4. Is there a warrant?
Bars the use of evidence gathered through an illegal search and seizure
1. Probable Cause
2. Basis of Knowledge (1st Hand knowledge)
2. Particular description
4. Neutral/Detached Magistrate
Individualized Suspicion v. Arbitary classification of large groups
-Dog certified at a dog training faciliitiy is enough to show probable cause
- Police affidavit is automatically reliable
- Police state of mind, reputation w/o facts is irrelevant to PC: cannot be Basis of Knowledge
1. Neutral and Detached Magistrate
2. Probable Cause
3. Oath and Affirmation
4. Particularity of Description (what is seized and where)
King Probable Cause at home:
1. Knock and announce
2. Get a warrant
unless had exigent of circumstances
1. Must have reason to believe resident is home
2.No unconsenual entry unless
1. Hot pursuit
2. Imminent destruction of evidence
3. Need to prevent a suspect's escape
4. Risk of danger to the police or to others
Reasonableness standard: deadly force only when immediate threat to police or others. Would a reasonable police officer under same or similar circumstances.
1. When at a home, must knock and announce rule when executing a search or arrest warrant.
2. However, they may dispense with knock and announce if Police must have reasonable suspicion (belief) that knock and announce at home would be dangerous or futile or inhibit effective investigation.
3. Even if no K&A and no rsbl suspicon: no remedy anyway
Ybarra Seizure of persons during warranted searches
1. Probable cause
2. Exigent Circumstances
Police created exigency
Engage in or threatening to engage ina 4th amdt violation
2. SITLA (PC-less)
3. Inventory search
2. Automobile Exception
3. PC of Evidence of Crime inside Car/ Exigent Circumstances
4. Inventory Search 5. Plain view Doctrine
Plain View Doctrine
1. Observe from Lawful location (with warrant/PC)
2. Immediately apparent contraband or incriminatory nature (=Probable Cause)
3. Lawful access (sidewalk v. being in the house)--Scope of the Search
McArthur: Police can "seize" premises or thing (or maybe even a person) while waiting for a warrant? Yes, if reasonable and PC
Scale of Individualized Suspicion
Consent (0)l-----BID----PC-----l (100)
Consensual Police Encounter (CPE)
Yes-Taking personal items, No- Come with/accompany police, Ability to say no
1. Blocking door
2. Asking for permission. 3. Would a reasonable person know they could decline search/seizure
Brief Investigatory Detention (BID)
1. Reasonable Suspicion "crime is afoot"
2. Reasonable Time it takes to diligently pursue a means of investigation that was likely to confirm or dispel their suspcions quickly
Where is a seizure?
No longer in a public concourse
1. Objective facts or circumstances
3rd Party Informants
2. BOK + Credibility
What is a seizure?
- Only by physical force or show of authority
- Only if in view of all the circumstances, a reaonable person would have believed that he was not free to leave
Show of authority
Hodari: Seizure requires that D yield/submit to show of authority.
If legal seizure
Must be based on reasonable suspicion
Ex) Fleeing from police in high crime area gives police reasonable suspicion
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