Search and Seizure
4th Amendment
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.
Person
Encompasses the individual as a whole and
his body, both internally and externally.
A person’s words are construed to be a part
of the person. Therefore, the police must
satisfy the requirements of the 4th
amendment.
Person Examples
The police pull up Jaden’s shirt sleeve to check his
arm for evidence of needle injections.
The police search Taylor’s shirt pocket for a gun.
The police search Sarah’s blood for alcohol
content.
Lexi and Hailey have a conversation about the
criminal acts they are planning for the weekend
and the police record that conversation without
their knowledge.
False Friend
Hoffa v. U.S.
False Friend
Trevor invited Sara into his hotel room where they
talked about Trevor’s criminal wrongdoings.
Trevor knows Sara as a prior labor union
associate.
Sara is now a government informant.
Not protected conversations.
Trevor is not relying on the privacy of the hotel
room but the misplaced confidence that Sara
would not reveal his wrongdoings.
PRIVACY
Katz v. United States
Katz v. United States
Electronic surveillance of a phone booth.
Reasonable expectation of
privacy. ****
The Fourth Amendment protects people not
places.
Privacy
California v. Ciraolo
TRASH
California v. Greenwood
California v. Greenwood
No reasonable expectation of privacy in
trash.
Houses
Includes all structures that people use as a
residence either temporarily or long-term
Example: Hotel Room
Includes buildings connected to the main structure
– garage
Curtilage- area which extends the intimate
activities of the homeowners. Lawn, outbuildings.
Offices etc. included.
CURTILAGE
U.S. v. Dunn
Open Field
Oliver v. U.S.
Curtilage v. open field
The proximity of the area to the house.
Whether the area is included within fences
or other enclosures surrounding the house.
The nature of the use to which the land is
being put.
The steps taken by the resident to protect
the area from observation.
US v. Dunn
Open Field exception
Any unoccupied or undeveloped real
property falling outside the curtilage of a
home.
It doesn’t have to be open or a field.
No expectation of privacy.
US v. Oliver
Papers
Includes personal items, such as letters and
diaries.
Includes impersonal business letters.
Effects
Includes all pieces of tangible personal
property.
Examples: cars, luggage, clothing, weapons,
fruits of a crime.
Warrant Requirement
Must have a warrant, supported by probable
cause, to search.
Warrant Requirement
Probable Cause
Sufficient reasonably trustworthy information
is known to authorities.
Draper v. U.S. - informant and arrest at train
Informants – their information if credible and
reliable and other corroborative evidence avail.
Warrant requirement
Issued by a neutral and detached Judicial
Officer
Neutral and Detached???
The judge gets a fee per warrant??? Connally v.
Georgia.
The judge accompanies the police on the
search??? Lo-Ji Sales v. New York
AG issued warrant, supervised police investigation
and chief prosecutor in the case. Coolidge v. New
Hampshire
Warrant Requirement
Oath or Affirmation – must swear that
claims are true to the best of his/her
knowledge.
Warrant Requirement Cont.
Particularity
Described with sufficient precision that the
officer executing it is able to identify it.
• Search 100 Elm Street –
 If one story single family home??
 If multi-unit apartment??
• Items to be seized must be described well
 Stolen Jewelry at 100 Elm Street???
Warrant Requirement
Knock and Announce unless
Threat of physical harm
Hot-pursuit
Criminal evidence may be destroyed
Exclusionary Rule
Mapp v. Ohio
Exclusionary rule
Evidence gathered in violation of one’s
right to be free from unreasonable searches
and seizures will be excluded from trial.
Justifications: Deterrence
Weeks v. US - Federal Agents
Mapp v. Ohio – State Actors
Fruit of the Poisonous Tree Doctrine
The exclusionary rule extends not only to
the direct products of the government
illegality, but also secondary evidence.
Silverthorne Lumber Co. v. US
WONG SUN
Fruit of the Poisonous tree
Example
The police search Hailey’s house without a
warrant and without probable cause.
They find a diary that implicates Hailey in a
murder.
Also, in the diary they find that Taylor was
a witness to the murder.
Diary –
Witness –
Limits to the Fruit
Independent Source Doctrine – The
secondary evidence was obtained by other
legal means.
Ex: Taylor’s name had been given to the
police before they found Hailey’s Diary and
they had spoken to her before the
warrantless search.
Limits to the fruit
Inevitable discovery rule – The evidence
would have eventually been found by
lawful means.
Attenuated Connection rule
Case scenarios 1
The police enter Patrick’s warehouse
without a search warrant. Inside, they find
contraband. They leave without taking the
evidence. They apply for a search warrant.
They don’t use any info. they obtained from
the prior illegal entry in the application for
the warrant . A warrant is obtained and
they seize the evidence. Exclude?
Case Scenarios 2
The police obtain a confession from Jakci in
violation of her right to counsel. Jacki then
shows them where the body is in the deep
snow. At the same time, a search team was
only a few miles from the body but had
temporarily suspended the search.
Exclude?
Case Scenarios 3
The police obtain a statement from Alec
moments after he is unlawfully arrested at
his home. Exclude?
Alec was released pending his trial and
came to the police station and made
incriminating statements. Exclude?
• WONG SUN
CASE SCENARIOS 4
Police arrest Penny without
probable cause. (an Unlawful
Arrest) They give Penny her
Miranda Warnings. Penny waives
her right to an attorney and
confesses.
Exclude?
Case Scenarios 5
The police lawfully arrest Jaden and
fail to give him his Miranda Warnings.
Jaden confesses and tells them where
to find the gun. They find and seize
the gun.
Exclude?
Case Scenarios 6
Trevor and Braxton robbed a bank. The
police beat a confession out of Trevor. In
his confession, Trevor tells them where the
money is hidden. EXCLUDE?
What if the police get a lawful confession
out of Braxton and he tells them where the
money is?
Exceptions to the warrant requirement
Exceptions to the warrant requirement
1. Search incident to lawful arrest
Escape of the arrestee, destruction of
evidence, possibility of harm to others.
Applies to custodial arrests.
Must be lawful arrest – based on probable
cause.
Exceptions – Search incident to
arrest - Scope
May search the arrestee’s person for
weapons or evidence of the crime.
May open containers on the person.
Limited to the area around the person. The
person’s grabbing area.
Protective Sweep:
Search for dangerous persons in the area.
Search the entire passenger compartment of the
car.
Search Incident Example
Police have a valid arrest warrant for Alec.
They go to his house and his wife lets them
in. They wait 10-15 minutes until Alec gets
home. They arrest him and then ask for his
permission to look around. Alec, being a
stellar criminal justice student, says no. The
officers tell Alec that they will do the search
anyway on the basis of the lawful arrest.
They proceeded to search the house, attic,
garage and workshop. They open drawers,
etc.
WARRANT EXCEPTIONS –
AUTOS OLD WAY
AT THE SCENE –
In motion on any public road
In a stationary position in a place not regularly used for
residential purposes and the vehicle works.
Probable Cause to pull over in the first place.
Probable cause to search.
WARRANT EXCEPTIONS –
AUTOS – OLD WAY
AWAY FROM THE SCENE
If the police have a right to search the vehicle
where it is stopped they may also have it towed
and search it somewhere else.
PROBABLE CAUSE***
Auto searches – Old Way
Officer Scott, stops a car on the highway.
He has probable cause to believe that it
contains drugs. Can Officer Scott search
without a warrant?
Officer Scott sees a car parked at a gas
station and has probable cause to believe it
has drugs in it. Can he search???
Auto Searches Old Way
Officer Scott has probable cause to search
an unoccupied car parked in the owner’s
driveway. Can he search it? Why or Why
not???
NEW LAW Searching Cars
ARIZONA V. GANT
Police may search the car incident to arrest
only if they reasonably believe that the
arrestee may access the car during the
search or that the vehicle contains evidence
of the offense of arrest.
Warrant exceptions – containers in cars
Suitcases, briefcases, paper bags, etc.
The police may search an automobile and the
containers within it where they have probable
cause to believe contraband or evidence is
contained.
If a container is found during a valid warrantless
car search. The police may open the container if it
is large enough to conceal the object of the search.
Containers not in cars
If police have probable cause to search a
container not in a car, they may seize the
container, but they can’t open it.
They must get a warrant to open it.
People have a reasonable expectation of
privacy in a container that is not in a car.
SEARCH A CONTAINER???
Police have probable cause to search a footlocker
taken off a train. The police don’t seize the
container right away. They wait until the
footlocker is put into a car. Before the car drove
away they seize the footlocker and take it to
headquarters and search it without a warrant.
VALID SEARCH??? or NEEDED A
WARRANT?
SEARCH A CONTAINER??
The police watched Jacob come out of a house
known to contain drugs separated into paper bags.
Jacob put a closed paper bag in the trunk of his
car. They had probable cause to believe the bag
contained narcotics from the house. Jacob drives
away and the police pull him over, opened the
trunk and searched the bag. They found marijuana
in the bag.
VALID SEARCH??? NEED A WARRANT??
Plain View Doctrine
Applies to seizure of evidence. Not the
search.
ELEMENTS:
Lawful vantage point.
•
•
•
•
During a warranted search
During a valid arrest
During a warrantless search that is valid
During a non-search. I.E. Hot pursuit
Plain View Doctrine
Elements Cont.
Lawful access to the object. – officers must
have a right to access the object
Probable cause to seize. – must be immediately
apparent that the object is criminal evidence.
PLAIN VIEW OR NOT??
Police are in Emily’s barn executing a
warrant to search for illegal narcotics.
While looking in the hayloft, they find
evidence of a murder.
PLAIN VIEW???
PLAIN VIEW OR NOT??
Police enter Anna’s house to arrest her for
robbery. While standing in the living room,
they spot cocaine laying on the kitchen
table.
PLAIN VIEW????
PLAIN VIEW OR NOT??
Karlee committed an armed Robbery.
Police are in “HOT PURSUIT” of Karlee to
arrest her for murder. They enter her house
without a warrant. While searching for
Karlee they find a gun on the couch.
PLAIN VIEW????
PLAIN VIEW OR NOT??
Officers enter Rachel’s open field. The
officer observes marijuana.
PLAIN VIEW???
PLAIN VIEW OR NOT??
Police are standing on the sidewalk. They
observe a marijuana plant sitting on a
window sill inside Sarah’s closed uncurtained front window. Officers have no
right to enter Sarah’s apartment without a
warrant to seize the plant.
PLAIN VIEW???
PLAIN VIEW OR NOT??
Police arrest Taylor, a college student, for
underage possession of alcohol. Police give Taylor
permission to go to her dorm room and get her ID.
Police follow her back to the dorm room. Police
stay in the doorway and observe marijuana and
drug paraphernalia in the room. Police enter the
room and seize the evidence.
PLAIN VIEW???
PLAIN VIEW OR NOT??
Police enter Hayden’s apartment without a warrant
because a bullet was fired through Hayden’s floor
into the apartment below injuring someone.
Police went to Hayden’s apartment to look for the
shooter and the gun. While in Hayden’s
apartment, police see stereo equipment that looks
out of place. The officer believed the equipment
was stolen but didn’t have probable cause to
believe that. Police picked up the stereo to obtain
the serial number. Ran the number and found it to
be stolen.
PLAIN VIEW??? Arizona v. Hicks
CONSENT TO SEARCH
The consent must be voluntary.
Voluntariness is a question of fact.
Whether police used a show of force.
Whether the police made persistent requests for
permission
Look at the age, mental condition and intellectual
capacity of consenting party.
Valid even if person is unaware he/she can refuse.
THIRD PARTY CONSENT
When more than one person has a common
privacy interest in a property. A
warrantless search is valid upon the consent
of either of those people for the common
areas.
VOLUNTARY CONSENT???
Police tell Alex that they have a warrant to
search his premises. Police in fact did not
have a warrant. Alex allowed the police to
enter his house and search.
VOLUNTARY CONSENT???
VOLUNTARY CONSENT???
Police arrest Alex in his front yard. Alex
shares the house with Tate. They are
roommates. Later, the police come back to
the house and Tate consents to the search.
They find evidence of Alex’s criminal
wrongdoings.
VALID CONSENT????
Search Warrant exceptions
Exigent circumstances- there is an
emergency situation that makes it
impractical for the police to obtain a
warrant. Must still have probable cause to
search.
EX: a police officer believes that a bomb
will go off in a building in a few minutes.
She does not have time to get a warrant.
Warrantless Searches-exigent
circumstances
Intrusions into the human body. Time is of
the essence. If they have to go get a warrant
the evidence may be lost or destroyed.
EX: Andrew is arrested for drunk driving,
the police need a blood test. If they have to
get the warrant the alcohol in Andrew’s
bloodstream may be lost/destroyed.
Intrusions into the Human body
1. The police must be justified in believing
the intrusion will result in the discovery of
evidence.
2. The means of obtaining/searching for the
evidence must be reasonable.
Exigency number 2
Search of external human body
Man comes to police station for
questioning. He is suspected in his wife’s
murder. The police are not ready to arrest
him, but notice a dark spot on his finger.
They get a scraping of the matter on his
finger to determine if it is his wife’s blood.
Cupp v. Murphy
Exigency 3
In one’s home
In hot pursuit of a fleeing felon
To prevent destruction of evidence
To prevent escape of suspect
Prevent harm to persons inside or outside the
house.
Inventory searches
Automobiles
After being towed to the police impound lot –
illegal parking.
Conducted for 3 purposes
• To protect owner’s stuff.
• To protect the police against claims of lost, stolen
property.
• To protect the police and public from dangerous
stuff that may be in the car.
Inventory searches
Arrest Inventories
Police can search a person and his effects when
booking
Same rationale as that for car searches.
Seizure
ARREST – seizure of a person
Arrest in public place
A warrant is not required even if there is time to obtain
one.
Arrest in one’s home
4th Amendment bars entry into one’s home
Must have an arrest warrant and reason to believe the
guy is there.
Knock and announce.
Private Property v. Public Place
Private property open to the public
A police officer approached Ashley’s house to
arrest her without a warrant.
The officer saw Ashley standing in her
doorway as he approached.
Ashley ran back inside. The officer followed
her inside and arrested her.
US v. Santana
TERRY STOP
Read Terry v. Ohio
Did the court find that it was a search and or
seizure?
What did the court call this encounter?
Did the court find that the police actions
violated the 4th Amendment?
Terry v. Ohio
Searches that are minimally intrusive may
be valid on a reasonable suspicion.
Fourth Amendment does not apply to “onthe-spot” determinations that criminal
activity may be afoot.
Was the police action reasonable???
Balance the need to search against the invasion.
TERRY V. OHIO
Reasonable suspicion – some minimal level
of objective justification.
Must be based on objective criteria.
Hunch
Suspicion
Reasonable
Suspicion
Probable Cause
Preponderance of
the evidence
Clear and
convincing
Beyond a
Reasonable
Doubt
100%
certain
TERRY STOP
Mr. Terry was seized even though no arrest
took place.
A pat-down is a search.
Court’s reasoning was based on the fact that
the seizure was brief and the pat-down was
less than a full search.
TERRY CASE
The court weighed two interests
The need for effective crime prevention
and
The police’s interest in making sure the
suspect is not armed and dangerous.
TERRY STOP
Pat-down the outer clothes
If something hard is found that may be a
weapon – you may remove the object.
TERRY STOP AND CARS
Officers may do a limited weapons
search of the passenger
compartment of a car that might
conceal a weapon.
TERRY STOP AND SOBRIETY
CHECKPOINTS
The police may briefly detain cars on public
roads in order to check drivers for
intoxication.
The state has a legitimate interest in
stopping drunk driving.
There is a slight intrusion on the driver.
Terry v. Ohio Scenarios
A woman standing on a corner gives a clear
bag with a white substance to a man who
gives her money in exchange.
A young man is walking down the street
dressed in gang colors.
Terry v. Ohio Scenarios
One man walks up a street, peers into a
store, and continues walking. He then
comes back and looks into the same store.
He meets a companion who also peers into
the window of the store. The two of them
continue walking back and forth checking
out the store several more times before
following a third man up the street.
Terry v. Ohio Scenarios
As you are driving down the street, you
notice a woman running away from you.
INTERROGATIONS
FIFTH AMENDMENT and FOURTEENTH
AMENDMENTS– no person shall be deprived of
life liberty or property without due process of law
FIFTH AMENDMENT – no person shall be
compelled in any criminal case to be a witness
against himself. (Self incrimination)
SIXTH AMENDMENT – right to assistance of
counsel.
INTERROGATIONS
Coerced Confessions – A statement
obtained by the police as a result of
coercion is inadmissible.
Due Process Clause
Violates right against self-incrimination.
Potentially untrustworthy
Case by case basis.
MIRANDA v. ARIZONA
Any statement made by a suspect during a
custodial interrogation may not be used
against him/her in a criminal trial unless the
state proves that the police provided
procedural safeguards.
MIRANDA V. ARIZONA
CUSTODIAL
Questioning after the person is
deprived of his freedom to leave.
INTERROGATION
Any words or actions on the part of the police
that they should know are reasonably likely to
elicit an incriminating response.
MIRANDA V. ARIZONA
Procedural Safeguards
Privilege against self incrimination – 5th Amend
Consequences of giving up the right
Right to counsel – 5th or 6th Amendment
MIRANDA V. ARIZONA
5th Amendment right against selfincrimination.
A suspect can enforce his/her right in any
way and interrogation must stop.
MIRANDA V. ARIZONA
Right to Counsel – the suspect can at any
time and in any manner indicate he/she
wishes to consult with an attorney.
Interrogation stops until an attorney is
consulted.
MIRANDA V. ARIZONA
Waiver of rights
Must voluntarily, knowingly, and
intelligently relinquishes his/her rights.
Only after full warnings have been given.
Voluntariness
Factors in determining voluntariness
Use or threat of use of violence – coerced
Psychological pressures can be deemed
coercive
Promises of leniency- may be coercive
Deception – may or may not be coercion
Miranda Rationale
Police interrogations are inherently coercive
Confessions are not a vital tool of law
enforcement.
The Fifth Amendment privilege maintains a
fair state-individual balance.
Custody???
The police come to Jaden’s house with the
intention of arresting him. The officer
knocks on the door and Jaden answers. The
officer does not tell Jaden of her arrest
plans, but asks Jaden if she can ask him a
few questions. Jaden answers the questions.
CUSTODY???
MIRANDA CUSTODY??
Police stop alec on the highway to give him
a speeding ticket. CUSTODY??
4 officers enter Sarah’s house at 4 a.m. and
question her in her bedroom. CUSTODY??
Andrea, a parolee comes to the police
station where she is questioned. The police
tell her she is not under arrest. She leaves
after the questioning. CUSTODY??
MIRANDA CUSTODY??
Braxton is arrested for a minor offense and
is questioned. CUSTODY???
MIRANDA
INTERROGATION??
Jacki is in custody for murder. Jacki and two
police officers are standing in the hallway. One
officer remarks to the other that the gun used in
the crime is missing and there is a school for
handicapped children in the area. The other
officer says “God forbid one of those kids gets the
gun and kills himself.” Emily immediately agrees
to show them where the gun is.
INTERROGATION????
Exceptions to Miranda
Public Safety exception
The police arrest Trevor in the middle of the night in
the back of a grocery store on suspicion of robbery.
The police knew that the robber had used a gun. Trevor
didn’t have a gun on him at the time of the arrest. The
police asked Trevor where the gun was prior to giving
the Miranda Warnings.
Doesn’t matter if one motivation of the police is to find
incriminating evidence.
Exceptions to Miranda
Covert interrogation – when a suspect is
unaware he/she is speaking to a police
officer.
Police place an undercover officer in a jail cell
with Hailey. The undercover officer engaged
in conversations with Hailey about why she is
in jail.
Exceptions to Miranda
Booking questions
Routine booking questions such as name,
address, date of birth, etc.
Does not cover those questions that are
intended to elicit incriminating statements.
Waiver of Miranda Rights
Burden of Proof – state – heavy burden.
Waiver may be inferred from the words and
actions of the suspect.
VOLUNTARY
KNOWING
INTELLIGENT
VOLUNTARY
Case by Case basis
Force used?
Psychological pressures?
Promises of leniency
Deception
Knowing and Intelligent
Is the suspect aware of the nature of the
rights and the consequences of the waiver?
Do you understand these rights and with
these rights in mind do you wish to speak
with us?
Waiver after initial assertion of
rights
When a suspect invokes his/her rights
questioning must stop.
Questioning can resume if the suspect later
waives those rights.
Questions for HOMICIDE CASE
Are the actions of the Baltimore homicide
detectives in compliance with Miranda? Why or
why not.
Do you think it is fair for police officers to deceive
or trick suspects in custody? Why or why not?
Think of a situation when it would be fair to trick
suspects.
How would it be different if the detectives strictly
complied with Miranda?