Evidence: Chapter 5
Terms
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- Fourth Amendment History
- The Fourth Amendment to the U.S. constitution is an outgrowth of the early colonists' fear of the English Crown Prior to our nation's independence, the British Parliament issued so-called writs of assistance, which permitted English authorities to conduct unlimited searches of colonists without any justification
- Writs of Assistance
- Prior to our nation's independence, the British Parliament issued this, which permitted English authorities to conduct unlimited searches of colonists without any justification
- Fourth Amendment Scrutiny
- Fourth Amendment has been subjected to intense scrutiny and commentary in courts' opinions and legal treatsies, and literally millions of pages of text have been devoted to its interpretation
- Constitution
- "a living document-" amendments continue to evolve and change as the courts are faced with unique and perplexing cases
- Reasonableness Clause
- Fourth Amendment clause; proscribes unreasonable searches and seizures
- Warrant Clause
- Fourth Amendment Clause; requires that no warrants be issued without probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized
- Pre-Fourth Amendment Analysis
- The Fourth Amendment applies only when the conduct in question is governmental and violates a reasonable expectation of privacy. When analyzing the Fourth Amendment, it is important to take into account the fact that the Fourth Amendment is not blanket protection against any form of law enforcement activity; partial
- Warrant Requirement
- There are a number of situations in which the police can search for evidence (or people) and make arrests without a warrant; exigent circumstances. Warrants are always required, such as arrests in a home absent exigent circumstances
- Fourth Amendment Protections
- protects "persons, houses, papers, and effects" from unreasonable searches and seizures
- Person
- describes individual people, whether citizens or not; also refers to the individual as a whole, both internal and external; recently been extended to include oral communications; also person's physical being, as well as anything a person communicates
- Houses
- is broadly construed to include any structure a person can occupy on a temporary or long-term basis; a hotel room; garages and other structures not connected to a "house"
- Papers
- business records, diaries, memeos, similar documents; conceivable personal items
- Effects
- personal items like containers, purses, luggage, briefcases, cars, clothing, weapons, and any other tangible piece of property that a person possesses
- Police Activity
- not all police activity are bound by the Fourth Amendment; search and seizure definitions
- Search
- three factors: whether the presumed search is a product of government action, whether the intrusion violated society's "reasonable expectation of privacy", and whether it infringes on an individual's "legitimate expectation of privacy;" act of looking for evidence
- Seizure
- dual meaning; not always limited to tangible evidence and can be seizures of persons
- Nonsearch
- occurs when the police look for evidence but their activity cannot be considered a search within the meaning of the Fourth Amendment; if a private party looks for evidence- even "searches" for it, it is not considered a search within the Fourth Amendment, because the party looking for evidence is not governmental
- Distinguishing a Search from a Nonsearch
- who is looking for evidence and where they are looking for it
- Governmental Versus Private Action
- The Fourth Amendment's protection against unreasonable searches and seizures has been limited by the courts to action that is governmental; when a private individual searches or seizes evidence, the person subjected to that activity is not protected by the Fourth Amendment
- Burdeau v. McDowell (1921)
- Governmental versus private aciton; the inapplicability of the Fourth Amendment to searches or seizures conducted by private individuals was first recognized in this case; Supreme Court ultimately declared that Fourth Amendment's "origin and history clearly show that was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other thatn governmental agencies"
- Government Officials
- Governmental versus private action; a uniformed police officer acting in his or her official capacity is clearly a governmental actor within the meaning of the Fourth Amendment
- What is Authorized by a Private Search
- Governmental Versus Private Action; a private party can turn evidence over to authorities without such action being considered a search; however, private parties become governmental when government actors encourage or order the private party to turn over evidence; if a private party is deliberately used in place of a government actor, any evidence turned over by the private party will be considered the fruit of a governmental search
- Reasonable Expectation of Privacy **********
- only when government action infringes on this can a search be said to have occurred; Now, courts rarely look at individuals' subjective expectation of privacy, opting instead to focus on a more general societal expectation of privacy (objective not subjective standard)
- Katz v. U.S. (1967)
- reasonable expectation of privacy; "the government's activities in electronically listening and recording words violated the privacy upon which [Katz] justifiably relied while using the telephone booth and htus constituted a 'search and seizure' withing the meaning of the Fourth Amendment;" "what a person knowingly exposes to the public, even in his home or office, is not subject to Fourth Amendment protection;" protection is only granted for "what he seeks to preserve as private;" government activity
- Hoffa v U.S. (1966)
- reasonable expectation of privacy; what one voluntarily conveys to a third party (as in conversation) does not enjoy and expectation of privacy
- California v. Greenwood (1988)
- reasonable expectation of privacy; "assumption of risk" in certain activities, such as leaving one's garbage on the curb for pickup; a search or seizure occurs only where a citizen has a manifested subjective expectation of privacy and the expectation of privacy is one that society (through the eyes of the court) is prepared to accept as objectively reasonable
- Undercover Agents
- reasonable expectation of privacy; when a person voluntarily conveys incriminating information during the course of a conversation, he or she cannot expect that the party to whom he or she is communicating will not go to the police with the information; institutional agents are people who work in some form of institution (such as a bank) and turn evidence over to authorities-they are not considered informants or undercover agents
- Smith v. Maryland (1979)
- Undercover agents under reasonable expectation of privacy; court declared that a person does not have a reasonable expectation of privacy regarding phone numbers he or she dials
- Personal Characteristics on Public Display
- reasonable expectation of privacy; courts have held that a person's external physical characteristics are knowingly exposed to the public and thus not protected by the Fourth Amendment; "no person can have a reasonable expectation that others will know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world" (U.S. v. Dionisio (1973)); subsequent cases justify the collection of additional forms of physical evidence, including locks of hair, voice exemplars, and fingerprints
- Personal Characteristics Not on Public Display
- reasonable expectation of privacy; people possess physical characteristics that are not on public display; protections under Fourth Amendment; blood, urine, and breath analysis all amounted to searches because "they intrude upon expectations of privacy as to medical information;" people always enjoy a reasonable expectation of privacy in their homes, so police need appropriate justification before entering
- Open Fields and Curtilage
- reasonable expectation of privacy; physical setting in which police activity takes place is important when determining whether the Fourth Amendment applies; inside of person's home or residence is always protected by Fourth Amendment
- Curtilage
- open fields and curtilage under reasonable expectation of privacy; "area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life
- Open Field
- open fields and curtilage under reasonable expectation of privacy; any unoccupied or undeveloped real property outside the curtilage of a home; assume that a shed is located 100 yards from a house is not used for "intimate activities, the shed can be considered an open field, even if it is on private property;" fly-overs were analogous to "searches" of open fields
- Enhancement Devices
- reasonable expectation of privacy; include everything from flashlights and K-9's to satellite photography and thermal imagery; if police are not in lawful vantage point, then a search occurs- lawful vantage points include sidewalks, streets, and public airways; use of a device that enhances the senses, instead of replaces the senses, is not considered a search (binoculars, dog sniffs, flashlights)
- U.S. v. Knotts (1983)
- enhancement devices under reasonable expectation of privacy; decided on the constitutionality of federal agents' actions of placing a "beeper" (a tracking device) in a container and tracking that container to the defendant's cabin- the Court answered "no," declaring that "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another- important because a "nonsearch" took place outside defendant's residence
- Seizure Defintions *******
- does not necessarily refer to the act of physically grasping something; property and persons
- Seizures of Property
- U.S. v. Jacobsen (1984); a seizure of tangible property occurs "when there is some meaningful interference with an individual's possessory interest in that property;" actual and constructive possession; a piece of property is seized within the meaning of the Fourth Amendment if the police remove it from a person's actual or constructive possession
- Actual Possession
- seizures of property; he or she is physically holding or grasping the property
- Constructive Possession
- seizures of property; refers to possession of property without physical contact
- Seizures of Persons
- when a police officer, by means of physical force or show of authority, intentionally restrains an individual's liberty in such a manner that a reasonable person would believe that he or she is not free to leave; California v Hodari D. (1991)- does an officer who chases a suspect on foot "seize" the suspect within the meaning of the Fourth Amendment- Court stated that a seizure does occur the instant a police officer lays hands on a suspect during a chase, even if the suspect is able to break away from the officer's grasp
- Justification Doctrine
- needs to be in place before the police act; pre-Fourth Amendment in nature- it focuses on what needs to be in place before a search or seizure takes place; only standard of justification mentioned in Fourth Amendment is probable cause
- Probable Cause
- justification doctrine; exists when "facts and circumstances within the officer's knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense;" exists when a officer has more than 50 percent certainty of guilt (for an arrest) or that the evidence will be found (for a search); probable cause to search does not necessarily create probable cause to arrest; when warrants are required, a judge decides whether probable cause exists by issuing the warrant
- The Role of Informants in the Probable Cause Determination******
- probable cause of justification doctrine; three informants: anonymous, confidential, and "known;" test created to ensure information supplied by informants is reliable and accurate (Aguilar test and "totality of circumstances")
- Anonymous Informants
- do not supply name to police
- Confidential Informants
- known to the police, but the police do not supply such informants' names in warrant applications
- "Known" Informants
- supplied in warrant applications
- Aguilar Test (Aguilar v. Texas, 1964)*********
- part of informant under probable cause under justification; two-prong test that required police officers who apply for warrants based on information supplied to show information to demonstrate how the informant knows what he or she knows and information to establish the credibility and reliablity of the informant
- "Totality of Circumstances" test (Illinois v. Gates, 1983)************
- part of informant under probable cause under justification; abandoned the two-prong Aguilar test; if a "particular informant is known for the unusual reliablity of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip"
- The Role of Firsthand Knowledge
- under probable cause and justification; a clear-cut case for probable cause being created by an officer's firsthand knowledge is when a person commits a crime in the officer's presence
- Reasonable Suspicion
- form of justification; do not require probable cause; lesser seizures require this; when a police officer pulls a motorist over for a traffic violation, probable cause is not required because such a stop is not considered an arrest or search; court stated that a lesser standard of justification than probable cause is required in certain circumstances because "street encounters between citizens and police officers are incredibly rich in diversity;" falls below probable cause but above a hunch; U.S. v. Sokolow (1989)- court defined reasonable suspicion as "considerably less than proof of wrongdoing by a preponderance of evidence" but more than an unparticularized hunch; headlong flight is the consummate act of evasion and reasonable suspicion, so have right to chase suspect (Wardlow)
- Administrative Justification
- form of justification; not justification at all; such searches are permissible so long as "reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling;" should be undertaken in a routine and predictable manner to avoid giving the appearance of arbitrariness or selective enforcement; people who conduct business in highly regulated environments do not enjoy the same expectation of privacy as ordinary citizens
- Standing******
- threshold issue; defendant cannot successfully raise a Fourth Amendment objection until he or she can show standing to bring the issue to the court's attention; has standing if he or she is the "victim" of a Fourth Amendment violation; "victim" should be distinguished from one "who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else"
- Possessory Interest
- part of standing; originally, standing was tied to property interests; if one had this in the thing seized or the place to be searched was the person considered to have standing; courts now focus on "totality of circumstances" to determine whether a person has a reasonable expectation of privacy
- Situations where Person has Standing
- part of standing; if a person has the right to exclude others from the premises; if a person has continuing access plus possessory interest; a person who is legitimately on the premises and has a possessory interest in the item seized (Minnesota v. Olsen, 1990)