Search And Seizure Checklist

Step 1: Is There a Fourth Amendment Right?
o Was search by a Government Agent?
o Did search violate ∆’s reasonable expectation of privacy?
 Standing
 Held out to Public

Step 2a: Government Agent Had a Warrant
o Was warrant proper?
 Neutral and Detached Magistrate
 Oath and Affirmation
 Probable Cause
 Particularity Requirement
 Execution
o If No, did Agent rely on Warrant in Good Faith?
 …if No, go to Step 2b

Step 2b: Government Agent Did Not Have a Warrant
o Does it meet a warrantless search exception?
 incident to lawful arrest
 automobile search
 plain view
 consent
 stop and frisk
 hot pursuit
 evanescent evidence
Search and Seizure Checklist [Expanded]

Step 1: Is There a Fourth Amendment Right?
o Rule: 4A prohibits government from conducting unreasonable searches and seizures. Unlike
arrests, a warrant is generally required before a search or seizure is commenced.
o Was search by a Government Agent?
 4A protects only against governmental conduct [Burdeau v. McDowell]

United States v. Jacobsen—two FedEx employees open package damaged by forklift and find
contraband. Call DEA agent who conducts warrantless search. Search by DEA agent is not 4A
violation—learned nothing more than was previously discovered by private search.
o Did search violate ∆’s reasonable expectation of privacy?
 Rule: 4A applies when govt. action intrudes into an area where a person has a
reasonable and justifiable expectation of privacy.

STANDING
 Rule: only a person with a legitimate expectation of privacy under the totality of
the circumstances has right to challenge the search or seizure [Rakas v. Illinois].
 Factors:
o Right to exclude others—analogize to having sufficient control to consent to
search.

Mancusi v. DeForte—standing granted to union official to contest seizure of
documents from a one-room office he shared with other officials. Shared office
did not destroy reas. expectation of privacy.
o Continuing access plus possessory interest—having access to place searched
and interest in thing seized.

US v. Padilla—Police stopped vehicle ∆ was driving and found cocaine. ∆ told
police he was involved in conspiracy with 3 others. The 3 were arrested and
sought to challenge search of car. Held: mere involvement in a conspiracy with
∆ does not give standing to challenge the search.
o Legitimate presence plus possessory interest—legitimate presence at place
searched and interest in thing seized.



Minnesota v. Olson—∆ stayed for one night; never left alone; not given key. ∆
arrested at apartment. Held: standing to challenge seizure. Overnight guests
entitled to reas. expectation of privacy when on premises for social purposes.
Minnesota v. Carter—2 ∆s were observed bagging cocaine in an apartment
through drawn window. No standing to contest observation—apartment used
simply for business purposes.
Rakas v. Illinois—∆s who were passengers in a car in which a sawed-off shotgun
was found, but who did not claim ownership of the shotgun or car, lacked
standing to complain of search of the car.
o Bailment—under a valid bailment there may be an expectation of privacy

Rawlings v. Kentucky—∆ put drugs in friend’s purse. Friend was ordered to
empty contents, she told ∆ to “Take what’s yours.” ∆ took the drugs which were
introduced against him. Bailment not sufficient to create expectation of privacy.
o Subjective expectations of privacy—should not weigh in analysis but it does.
Problem is that if it is suggested to one by authorities that there is no
expectation, this subjective expectation can reduce the actual right.


No Automatic Standing:
o Mere possession or mere legitimacy on premises is insufficient.
o Person does not have standing merely because evidence is introduced
against him in a possessory offense [US v. Salvucci]
HELD OUT TO PUBLIC
 Rule: a person does not have a reasonable expectation of privacy in objects held
out to the public—therefore, it is not a search. For example:
o Handwriting [US v. Mara]
o Sound of Voice [US v. Dionisio]
o Telephone numbers dialed [Smith v. Maryland]
o Bank records held by bank [Fisher v. US]
o Trash cans on curb [California v. Greenwood]
o Paint on the outside of a car [Cardwell v. Lewis]
o Location of car on public street or driveway [US v. Knotts]
 even with use of electronic tracking beeper [US v. Karo]
o Anything across open field [Oliver v. US]
o Anything from airspace [Dow Chemical v. US; California v. Ciraolo; US v. Dunn]
 public airspace is above 400 ft [Florida v. Riley]
o Dog sniffs [US v. Place]
 Even when pursuant to routine traffic stop [Illinois v. Caballes]
o But…


Special Case: Use of Enhancement Technologies
o Rule: cannot use technology not in common public use to discover facts
about what’s going on inside a home that formerly would have required
you to go into the house to discovery requires for its use a search warrant.


Bond v. US—Officer boarded bus and felt baggage tactilely for cocaine. Held:
violation of legitimate expectation of privacy
Kyllo v. US—use of thermal imager on ∆’s home to detect the presence of high
intensity lamps commonly used to grow marijuana constitutes a search.
Step 2a: Government Agent Had a Warrant
o Was warrant proper?
 NEUTRAL AND DETACHED MAGISTRATE
 Rule: a warrant must be issued by a neutral and detached magistrate. There is
no good faith defense to this requirement.
o

Court clerk may issue arrest warrants for violations of city ordinances [Shadwick v. City
of Tampa]
The following are not neutral and detached:
o State’s Chief Investigator and Prosecutor [Coolidge v. New Hampshire]
o Someone receiving a fee when issuing a warrant [Connally v. Georgia]
o Magistrate who participates in search [Lo-Ji Sales v. New York]
o United States Attorney General [US v. US District Court]

OATH AND AFFIRMATION
 All documents requesting a warrant must be affirmed or sowrn to by the officer
making the application.

PROBABLE CAUSE
 Should be assessed in common-sense and realistic fashion, not hypertechnical
[Illinois v. Gates].
o

Same level of suspicion required for all searches.
o

search for material which may be protected by 1A need not be justified by any greater
level of suspicion than other searches [New York v. PJ Video; Zurcher v. Stanford Daily]
PC may be based in whole or in part on hearsay—lack of credibility reliability is
not fatal to warrant as long as totality of circumstances indicates PC.
o

US v. Ventresca—FBI observed deliveries of “sugar” in 60-pound bags, smelled odor of
fermenting mash and heard sounds of motor or pump coming from ∆’s house. Held: PC.
Illinois v. Gates—Police received anonymous tip that named ∆s as drug dealers and
specified facts about how dealing takes place. Police independently observed transaction
as it was described. Though no support for informant’s reliability, there was PC.

The sufficiency of a warrant is based solely on information disclosed when
seeking issuance from the magistrate [Whiteley v. Warden]

Challenging Probable Cause [Franks v. Delaware]
o A search warrant is invalid if a defendant makes a substantial showing by
a preponderance of evidence that a false statement was:
 included in affidavit by affiant
 necessary to find probable cause
 made knowingly or recklessly
o Criticism:
 cannot challenge informants’ statements
 officers are encourage to fabricate intentionally when there is
overwhelming evidence (won’t lose PC)

Exceptions: Less-Than-Probable-Cause Sufficient
PARTICULARITY REQUIREMENT
 Rule: a warrant must describe with reasonable certainty the place to be searched
and the things to be seized. Otherwise, it is unconstitutional [Groh v. Ramirez].
o There is no good-faith defense to this requirement.

Place to Be Searched
o The analysis should not be influenced by events subsequent to execution
of warrant—was it reasonably particular based on diligent knowledge of
relevant facts.


Things to Be Seized
o Warrant should be as specific as possible in identifying the items to be
seized.


Garrison v. Maryland—Warrant indicated “third floor apartment”, suggesting
that it occupied entire 3rd floor. When police arrived there were two apartments,
one belonging to ∆. Police were suff. diligent in attempts to ascertain location.
Warrant held to be valid.
Lo-Ji Sales, Inc. v. New York—warrant authorized search of adult book store to
seize any items which magistrate may find “obscene.” Not suff. particular.
EXECUTION
 Police—a warrant must be executed by the police.

Knock & Announce1
o Rule: police must knock and announce authority and purpose and be
refused admittance before using force to enter place to be searched.

A wait of 15-20 seconds after the police knocked and announced their presence
before breaking down door is constitutional [US v. Banks]
o Exceptions: no announcement is required if the officer has reasonable
suspicion that announcement would be:
 Dangerous or futile
 Officers may be harmed
 Inhibit investigation:
 Evidence may be destroyed [US v. Ramirez]
 Suspect may escape
o Validity of no-knock entry is judged on a case-by-case basis.

Detainment
o Rule: in executing a warrant, police may detain persons who are present
on premises to be searched while search is conducted [Michigan v. Summers]

Persons may also be detained for a reasonable time and not allowed
unsupervised entry while police go to get a warrant [Illinois v. McArthur]
o But… persons detained may not be frisked or searched unless situation
gives rise to probable cause for arrest [Ybarra v. Illinois]
 see Search Incident to Lawful Arrest

1
Limitations:
Wilson v. Arkansas; Richards v. Wisconsin.
o Presence of Third Parties—when executing a warrant in a home, police may
not be accompanied by a member of the media or any other third party,
unless they are aiding in executing warrant [Wilson v. Layne]
o Arrest Warrant—an arrest warrant does not give officers right to search for
person to be arrested in the home of a third party without first obtaining a
search warrant [Steagald v. US]
o If No, did Agent rely on Warrant in Good Faith?
 …if No, go to Step 2b

Step 2b: Government Agent Did Not Have a Warrant
o Does it meet a warrantless search exception?
 INCIDENT TO LAWFUL ARREST
 any custodial arrest sufficient—as long as arrest is custodial, gravity of offense is
irrelevant [Atwater v. City of Lago Vista]
o
o
o
US v. Robinson—officer arrested ∆ for driving with a revoked license and searched him
finding heroin in coat pocket. Held: valid search incident to lawful arrest.
Gustafson v. Florida—officer searched ∆ after his arrest for failure to have his driver’s
license in his possession.
BUT… Knowles v. Iowa—officer stopped ∆ for speeding and issued a citation (no arrest)
and proceeded to search car. Mere traffic stop (not custodial) was insufficient.

arrest must be lawful—police must have:
o arrest warrant based on probable cause
o probable cause to arrest without warrant

contemporaneous with time and place—a search incident to lawful arrest must
be contemporaneous in time and place with arrest
o
o
o

Preston v. US—search of car after suspects were arrested and incarcerated and after car
was towed to garage is not incident to arrest.
US v. Chadwick—search of suspect’s footlocker over an hour after both the suspect’s
arrest and the government’s gaining control over the footlocker was not incident to arrest.
BUT… US v. Edwards—search of clothing was allowed morning following evening
arrest where substitute clothing was unavailable at the time of booking.
scope of search—at time of arrest, police may conduct a full search of
 PERSON ARRESTED


arrestee’s dwelling—police may not enter dwelling if arrest is made
outside; unless they allow her to enter, then police can follow and
search wingspan as he moves through home [Washington v. Chrimsan]
PERSON’S WINGSPAN—areas

within the person’s immediate reach
protective sweep—with reasonable suspicion, this includes areas
where accomplices may be hiding [Maryland v. Buie]
o Special Case: Automobiles—


by definition, entire passenger compartment is with a person’s wingspan and
may be searched [New York v. Belton]
interior may be searched even if suspect is outside of car [Thornton v. US]

AUTOMOBILE SEARCH [Carroll


v. US]
Rule: prior to initiating any search—
o Probable cause: police must have full probable cause to believe the car
contains the fruits or instrumentalities of crime or contraband
o Exigency:
 vehicle is readily mobile [Maryland v. Dyson].
 if vehicle on private property or stationary, showing that police
have no time to go get a warrant prior to search.
Vehicles Covered:
o CARS; BOATS; PLANES; MOBILE HOMES
o

Factor: whether setting of vehicle objectively indicates that it is being used for
transportation [California v. Carney]—therefore, having a lower expectation of privacy.
Probable Cause
o Rule: as long as stopping of vehicle is lawful, what police observe can
“ripen” into probably cause [Colorado v. Bannister].
o Car as contraband: if police have PC to believe that car itself is
contraband, it may be seized from a public place without a warrant.


Florida v. White—police had PC to believe that ∆ was using car to transport
cocaine. Under state law, a car used to transport cocaine is contraband.
Warrantless seizure was allowed.
Scope of Search
o If police have PC to justify a warrantless search of a vehicle, they may—
 search the entire car
 open any packages or luggage found there that could reasonably
contain the items for which they have probable cause to search
[US v. Ross]
 this includes packages of passengers, not just the driver
[Wyoming v. Houghten]
o Police may conduct a warrantless search of any container they have PC to
search once it is placed in a car that is “readily mobile” [California v.
Acevedo]
o Search does not need to be contemporaneous with stop—vehicle may be
taken to station and searched later [Chambers v. Maroney]

2
Roadblocks
o Rule: a roadblock search without individualized suspicion is
constitutional if:
 Neutral: cars are stopped on a neutral, articulable standard
 Purpose: roadblock designed to serve purposes closely related to a
particular problem related to automobiles or their mobility.2
Suspicionless boarding of boats is not prohibited by the fourth amendment [US v. Villamonte-Marquez]
o Is Standard Neutral?
 standard cannot be random [Delaware v. Prouse]
o Is Purpose Adequate?
 Adequate: related to highway safety.
 sobriety checkpoint [Michigan Dept. of State Police v. Sitz]
 search for undocumented aliens [US v. Martinez-Fuerte]
 informational roadblock [Illinois v. Lidster]


PLAIN VIEW [Coolidge

Rule:
o
o
o

o

v. New Hampshire]
Warrantless seizures by the police are justified when:
Legitimacy: police are legitimately on the premises
Probable Cause: they discover objects that they have PC to believe are
contraband or fruits or instrumentalities of crime
Plain View: they observe such evidence in plain view.
Probable Cause
o

Not Adequate: detecting evidence of “ordinary criminal
wrongdoing.”
 search for illegal drugs [Indianapolis v. Edmond]
Texas v. Brown—officer stops ∆’s car at a routine license checkpoint. As ∆ reaches to
get license, he drops a balloon—inside glove compartment are vials, loose white powder
and an open bag of balloons. Officer seized balloon which contained heroin. Held:
sufficient PC for plain view search.
Arizona v. Hicks—officer validly enters poorly furnished apt. to investigate shooting and
sees expensive stereo components which he suspects are stolen. Officer moved the
equipment in order to check serial numbers. Held: moving was a search requiring
probable cause and officer did not have PC.
Plain View
o The discovery of the evidence does not need to be inadvertent—police can
go in expecting to find evidence not mentioned in warrant [Horton v.
California]
CONSENT

Rule: a search may be conducted without a warrant if voluntary and intelligent
consent is given

Was Consent Voluntary?
o Rule: In determining whether consent is voluntary, court looks at totality
of the circumstances [Ohio v. Robinette].
o No Duty to Warn: police do not have to warn a person of the right to
withhold consent—knowledge of right to withhold consent is a factor in
consent analysis [Schneckloth v. Bustamante; US v. Drayton]
o Invalid Search Warrant—when police claim to have a valid search
warrant which later turns out to be invalid, consent given is considered
involuntary [Bumper v. North Carolina]

Who May Consent?
o Rule: Where two or more people have an equal right to use a piece of
property or premises, any one of them can consent to its warrantless
search.
o Apparent Authority to Consent
 Rule: consent is valid as long as police reasonably believe that the
person giving consent had an equal right to use or occupy the
searched premises.

Illinois v. Rodriguez—∆’s former girlfriend escorts police back to ∆’s
place, uses key to open door and police find his drugs. POs believed
that she had apparent authority. Held: consent is valid.
o Third Party Consent






Was Search Limited?
o Rule: if you can prove that police specified what they are or will be
looking for, you may limit the scope of legality of the search.


Parents can consent to search relating to children, but not vice versa
consent by grandmother to search her home for evidence relating to grandson
was sufficient [Bumper v. California].
joint user’s consent to search duffel bag for evidence relating to other uses was
sufficient [Frazier v. Cupp].
Roommates can consent to any part they have an equal right to [US v. Matlock]
But… consent by hotel clerk of room in hotel was insufficient [Stoner v.
California]
Florida v. Jimeno—officer stopped ∆ for traffic infraction after observing ∆
participating in drug transaction. ∆ consented to search of car. ∆ found bag on
floorboard, opened it and found cocaine. Held: because ∆ did not place any
restrictions on consent and knew officer was searching for drugs, it was
reasonable for officer to assume he could search the bag.
STOP AND FRISK

Standards [Terry v. Ohio]
o Stop: when police have an articulable, reasonable suspicion that
someone may be involved in criminal activity, they may stop the person.
o Frisk: if police reasonably believe that the suspect may be armed and
presently dangerous, they may conduct a protective frisk.

Is There Reasonable Suspicion?
o Rule: must be based on objective, specific and articulable facts that lead
officer to believe criminal activity is afoot (less than probable cause).
 must be particularized as to suspect stopped
o Police may consider totality of circumstances in forming reasonable
suspicion [US v. Cortez]:
 United States v. Sokolow—officers based stop on suspect who bought two




roundtrip tickets from HI to Miami with a return time 48 hours after arrival, paid
in $2100 cash from a roll of $4K and gave false number. Reasonable suspicion.
Florida v. Royer—suspicion based on: heavy bag; youth and casual dress; pale
and nervous appearance; use of cash; failure to give full ID info on luggage; and
arrival from Miami (drug import center) at NY (distribution center). Reasonable
suspicion.
US v. Arvizu—observed: ∆ slowing down at sight of agent; failure to
acknowledge agent; children waved oddly at officer; children had knees raised
up like they were sitting on something; occurred in AZ (smuggling area);
driving minivan; on dirt road used by smugglers. Reasonable suspicion.
Peters v New York—observed: two suspects tiptoe down hallway; flee upon
seeing cop. Reasonable Suspicion.
But…
 Brown v. Texas—two officers observed ∆ and another man walking
away from one another in an alley in a “high drug problem area.”
Officers believed they prevented a meeting between the two—stopped
∆ and frisked him. Unreasonable Suspicion.
 Sibron v. New York—observed: talking to a number of known addicts;
reaching into pocket. Unreasonable Suspicion.
o Unprovoked Flight
 Unprovoked flight is not dispositive, but is highly suggestive of
criminal activity [Illinois v. Wardlow]
o Specialized Training
 Officers are entitled to make assessments of the situation based on
specialized training and familiarity with customs of area’s
inhabitants [US v. Arvizu]
o Informants:
 Tip from an informants with sufficient indicia of reliability may be
adequate basis for reasonable suspicion.



Adams v. Williams—informant was known to officer, provided info in
the past. Particularly, his presence at stop aided reliability.
Anonymous tip which accurately predicts the conduct of the
suspect is sufficient for reasonable suspicion [Alabama v. White]
 however, if there is no explanation of how knowledge was
obtained or a basis for believing inside information,
informant tip is unreliable [Florida v. J.L.]3
Has a Stop Occurred?
o Rule: a stop occurs when the police conduct is such that a reasonable
person would believe that he is not “free to leave”—was not at liberty to
ignore the police presence and go about his business [Florida v. Bostick]
Unfounded tip is not cured by Terry’s firearm exception generally—but may be merited in connection with tips about concealed
bombs, or of guns being carried near schools and other areas associated with a lesser expectation of privacy.
3

Florida v. Royer—∆ confronted by officers at airport who asked for ID and
ticket. Officers did not return ticket or ID before questioning ∆ and asking him
to accompany them to private room. Held: Seizure—∆ not free to depart.
o Mere show of authority is not a stop



police car driving parallel to running pedestrian is not a stop [Michigan v.
Chesternut]
police car driving up on people is not a stop [California v. Hodari D.]
mere questioning by police is not coercive [Florida v. Bostick]
o Luggage:
 If police have a reasonable suspicion that a person’s luggage
contains narcotic, they may detain the unopened luggage
temporarily to investigate the circumstances.


US v. Place—a 90-minute detention of ∆’s luggage at the airport to
arrange for a dog sniff was held unconstitutional for its duration.
Was Frisk Constitutional?
o Rule: the scope of a frisk includes:
 a patdown of the suspect’s outer clothing
 search of any area from which suspect may obtain a weapon
[Michigan v. Long]
.
o Seizure: officer may reach into suspect’s clothing and seize any item that
the officer reasonably believes based on its “plain feel” is:
 a weapon
 contraband
 officer may not manipulate package to discern its contents
[Minnesota v. Dickerson; Bond v. US]

Stopping Cars
o Rule: an officer may stop a single vehicle solely for the purpose of
checking driver’s license and registration only with a reasonable and
articulable suspicion.
 Random stops are unconstitutional [Delaware v. Prouse]
o asking driver or passengers to step out of car that’s been validly stopped is
a reasonable seizure even without individualized suspicion [Pennsylvania v.
Mimms; Maryland v. Wilson]
o if there’s a traffic violation…
 if an officer has PC to believe that a traffic law has been violated,
officer may stop suspect’s car, even if the officer’s ulterior motive
is to investigate whether some other law—for which the officer
lacks reasonable suspicion—is being violated [Whren v. US].4
4
The subjective behind police search and seizure is irrelevant only when police clearly have an objectively legitimate reason for
stopping in the first instance.



Stop and Identify Statutes
o Rule: as long as police have reasonable suspicion require to make a stop,
they may require detainee to identify herself and detainee may be arrested
for failing to comply with the request [Hiibel v. Sixth Judicial District Court]
 statutes may not be vague as to what will satisfy the identification
requirements [Kolender v. Lawson]
HOT PURSUIT [Warden

v. Hayden]
Rule: before entering premises, police must have PC to believe that the person
they are pursuing—
o committed a crime which is not minor
o is on premises they wish to enter
o will escape or harm someone unless a warrantless entry is made.



Warden v. Hayden—taxi company was robbed; taxi drivers followed ∆ to a
house and called police. Police arrive and enter house—they find incriminating
clothing, shotgun, pistol and ∆. Evidence admissible pursuant to hot pursuit.
Non-Minor Offense
o Minor offenses do not provide sufficient exigency to justify warrantless
entry into a home.


officers may enter car to observe the Vehicle Identification
Number (“VIN”) without reasonable suspicion, if validly stopped
for traffic violation or other effect [New York v. Class]
Welsh v. Wisconsin—∆ was suspected of drunk driving after his car was found in
a ditch. Police entered home to obtain blood sample. Under WI law, offense
was civil not criminal. Evidence excluded.
Pursuit
o Police bears burden to show it was an emergency [Welsh v. Wisconsin]
o When police have PC and attempt to make a warrantless arrest in a public
place, they may pursue suspect into a private dwelling [US v. Santana]
EVANESCENT EVIDENCE

Rule: Police may make a warrantless seizure of evidence likely to disappear
before a warrant can be obtained. Police must show:
o PC to believe that an immediate search is necessary to prevent
disappearance of evidence
o offer effective means of preventing threat
o limited in scope to purpose of the search
o reasonably conducted

Examples of Evanescent Evidence
o blood sample containing alcohol [Schmerber v. California]
o fingernail scrapings [Cupp v. Murphy]

OTHER SPECIAL EMERGENCIES



Seizure of contaminated foods and drugs
Seizure of children in trouble
Seizure of evidence from a burning or smoldering fire [Michigan v. Tyler]

Random Drug Testing
o US Customs Agency [National Treasury Employees Union v. Von Raab]
o at schools [Board of Education v. Earls]
o railroad employees in accidents [Skinner v. Railway Labor Executives’
Association]