FOURTH AMENDMENT: SEARCHES AND SEIZURES

Two parts to the Fourth Amendment:

● Protects against unreasonable searches and seizures (reasonableness clause) and;
● Warrants must be made with probable cause (warrants clause)

Seizure: Under tot. of circums., a reas. person would not feel free to decline officer’s reqs. or o/wise end encounter

Reasonable Expectation of Privacy Warrant Clause

-Subj. expectation that society sees as reas.: Needs probable cause, based on the totality of the
● One’s home; circumstances and information learnt before arrest or
● Real ppty; or search; reasonable belief that;
● Being a social guest ● The detained suspect has committed/is going to
● Can also apply to a phone booth commit a crime (arrest warrant);
No expectation of privacy in: ● Or evidence or fruit of a crime may be found in a
● Voice; particular location (search warrant)
● Handwriting; -Searches w/o warrant are unreas., unless w/i exception
● Sniff test (smell of one’s car/luggage); -No warrant needed for arrests/seizures, if:
● Paint o/s vehicle; ● Arrests in public (need prob. cause that detainee
● Bank records; has committed or is committing crime);
● Areas o/s home & rel’d bldgs (curtilage); warrantless arrest in home OK if emergency
● Garbage for collection; ● Stop and Frisk (reas. susp. of crim. activity or
● Land from a public place, or aerial view; involv. in crime, supp. by articulable facts)
-Even with the exceptions, if the police activity requires ○ Terry Stop - pat down for weapons, if
technology that is unavailable to the general public, this reas. susp. that det. is armed & dang.
is a search ● Auto Stop/Roadblock - search of pax too; need
-Intrusion upon a home is 4th Am. search & reqs. 4th reas. susp. to gen. stop a car; gen. roadblock to
Am. protections enforce traffic viols. (needs to be neutral, artic.
-Need expect. of priv. to challenge police search for 4th std.; purpose rel’d to certain prob. rel. to autos &
Am. standing mobility); prob. cause to bel. driver viol. traffic
law can be pretext to investigate other crime

WARRANT PROCESS
Method -Police officer makes an affidavit of prob. cause
● If contain delib. or reck. false statements; warrant invalid
-Need a neutral magistrate to issue warrant (no pecun. int. in investig.)
-Warrant is particularized (very spec. as to premises; what to seize)

Executing Warrants -Law enforcement officers as auth’d by statute (typ. police);

-Must be exec’d w/i time frame spec’d on warrant;
-Knock & answ. at door, announc. presence; forced entry if no resp. after
some time or rej.

Scope of Warrant Search
-Scope ltd. by what items are being searched (e.g.: look for items where they
can be exp’d to be found; weapons in open closets, chests, under bed)
-Vehicle searches: every part of veh. that could poss. contain item;
-Persons on premises:
● If not named, be det’d & searched (search incid. to arrest)
● Can’t be followed if they leave, must remain near search. premises;
● Terry Stops for those reas. susp’d of being armed & dang.
● Once items listed on warrant are found, police can’t go any further

After Execution -Executing officer must leave a copy of the warrant and receipt of items
seized with the court to note execution;
-State precisely what was seized

EXCEPTIONS TO THE WARRANT REQUIREMENT

Comparison Chart
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 Type of Search Probable Cause Contemporaneous Other Limitations
Requirement Requirement

Search Incid. to Arrest Yes (for arrest) Yes Constitutional Arrest

Search Incidental to No No Established Routine

Incarceration

“Automobile Exception” Yes No Containers, ltd to those

that could hold evid. sought

Plain View Yes (to believe the item is Yes Lawfully on premises;
evidence, contraband, etc.) evidence in plain view

Consent No Yes Vol. & intelligent consent;

apparent authority to
consent; can’t be against
wishes of a present and
objecting co-occupant

Stop and Frisk No (reasonable suspicion Yes Stop - reasonable and

accompanied by articulable articulable suspicion of
facts) crim. activity

Hot Pursuit, Evanescent No Yes Emergency situation - no

Evidence, Emerg. Aid time to get a warrant

Detailed Rules
Type of Search Description

Search Incid. to Arrest Must require a constitutional arrest before any search can be made; search of the
person’s WINGSPAN (anything on body; underneath arms)
● Must be contemporaneous w/ the arrest;
● If in a car, the rule applies to the pax compartment, if:
○ The arrestee is unsecured and can still gain access to the interior
of the vehicle; or
○ The police reas. believes that evid. of arresting offence is in veh.
● Tech searches req bal. test (priv. int. vs. search needed to further legit. govt.
ints.) - breath test OK, not blood; phys attrib of phone OK, but not data inside
● Can make inventory search of arrestee’s items at pol. sta. & impounded veh.

Automobile Exception Exception applies where police has prob. cause to believe that veh. contains fruits,
(Broad Authority) instrumentalities or evid of crime - can search the entire vehicle & any container that
can reas. contain item for which they had prob. cause to search
● If valid search, can tow away for later search (but not if veh. in curtilage)
● Search can extend to passengers’ packages;
● If prob. cause only to search a container; they can only search that container,
not anywhere else in the vehicle

Plain View Warrantless search OK if police:

(1) are lawfully on premises (pub. sidewalk; exec. warrant); (2) discover evidence,
fruits or instrums. of a crime, or contraband; (3) see such evid. in plain view; and (4)
have prob. cause to believe that item is evid., contraband, or fruit/instrum. of a crime

Consent Valid if there is voluntary consent

Stop and Frisk P/O can stop with prob. cause--need artic. & reas. susp. of crim. activity
● Not an arrest, so no prob. cause; but must have a reas. to believe that crim.
activity is going on. Frisk justified if suspect might have a weapon

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 ● Scope of intrusion - patdown of outer clothing, unless officer has spec. info abt
hidden weapon; may also frisk pax of a stopped veh.
● During patdown, can seize anything based on “plain feel” that it is a weapon or
contraband - evid admiss. w/ reas. belief

Hot Pursuit, Exigent Circumstances where evid. or the suspect would vanish if the police would have to get
Circumstances, a warrant
Emergency Aid
Exceptions

Other Permissible Searches Without a Warrant

Administrative Searches Search Outside U.S. and at Border

Admin searches to promote safety (food hygiene-spoiled
or contaminated food; airline passengers; drug tests of
RR employees and DEA agents); conduct (highly
regulated business; parolees and homes; prisoners
before admission to general prisoner population; gov’t
employee’s desk and file cabinets; public school studs. in
extracurricular activities)
● 4th Am. protections do not apply o/s US;
warrants, prob. cause or reas. susp. not needed
for search at border b/c of nat’l sovg. ints.
● W/in border, patrols can stop veh. if reas. susp.
that veh. has undoc. aliens; border officials may
stop veh. at checkpt w/in border for questioning
& can disassemble veh w/o reas. susp.
● Postal auths. can open intl mail if reas. cause
mail has contraband

Public School Searches Wiretapping and Eavesdropping

No warrant or prob. cause needed for public school
officials to search students or their possession - need
reasonable grounds for the search
● Moderate chance of finding evidence of
wrongdoing;
● Measures adopted to execute the search are
reasonably related to the objectives of the
search; and
● Search is not excessive intrusion in light of age &
sex of student & nature of the infraction
Need warrant for wiretapping or eavesdropping (o/wise
4th Am. search);
● Prob. cause;
● Name susp. persons involved in convo;
● Warrant describes w/ partic. convos to be heard;
● Ltd to short pd of time;
● Wiretap to terminate when desired info obt’d;
and
● Return made to the court showing what convos
were intercepted
Exceptions:
● Unrealiable Ear - person assumes risk he is
talking to an informant; no 4th Am. claim for s/o
who does not try to make convo private;
● Jud. approval req’d by statute for pen registers to
be used (recording numbers dialled from a
phone)