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FOURTH AMENDMENT FLOWCHART

Fourth Amendment Flowchart


Search or Seizure?

NO

NO

Yes State Actor? Ye s

STOP
NO
4A Does Not Apply

Book em Danno.

NO
Probable Cause

The Fourth Amendment (4A) protects privacy, possessory, and liberty interests and may be challenged only by those whose rights have been impaired. Standing is addressed within the context of 4A by asking whether the person claiming the protection of 4A has a legitimate expectation of privacy (LEOP) or a substantial property interest (SPI) in the invaded space. (Rakas). In the absence of the owner/lessor (O/L), social guests with complete dominion and control (D&C) have a LEOP but temporary or business guests do not. (Carter) A guests status may be determined from the nature of their activity, time on premises, and the extent of any previous connections with the O/L. (Carter) When an O/L is present, overnight guests without D&C may have a LEOP. (Olson). A guest may not attain standing by simply asserting ownership of the property seized, (Rawlings) and in the absence of standing, may not invoke the exclusionary rule to suppress introduction of such evidence against him (Alderman), regardless of the legality of the search yielding the evidence. (Payner)

HAS STANDING?

YES

WARRAN T REQUIRE D?

NO

YES

WHAT KIND OF WARRANT?


Why are warrants required?4A Protects 3 Constitutional Interests: Liberty Property PossessoryWhat is the Controlling Authority?4A is a legislative measure, not constitutional. Therefore, it may be limited. (Calandra). Watch for states giving more protection. (Hempele)SEARCH WarrantHighest protection of individual rights. Required anywhere suspect has REOP (Katz Test).ARREST WarrantOnly time required in public place is for past misdemeanors (Watson). Warrant normally required for non-emergency arrest where REOP (home) (Payton)

Warrant Obtained?

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FOURTH AMENDMENT FLOWCHART

Invalid Warrant = No Warrant

No Warrant Exception

Valid Warrant Exception

4A VIOLATION

4A VIOLATION

EVIDENCE IS ADMISSIBLE

Good Faith Exception? The Rule: Evidence seized by police, reasonably relying on a warrant as measured by an objective standard, is admissible even if the warrant turns out to be invalid (Leon). Cannot have good faith exception if: Magistrate not neutral and detached Officer lied on warrant application or recklessly disregarded truth in warrant application. Officer could not possibly have harbored an objectively reasonable belief in the existence of probable cause. Officer could not possibly have harbored an objectively reasonable belief ithat the warrant was valid.

IF VALID WARRANT, CHECK FOR VALID EXECUTION Is K&A required? Physical scope area & places in house (cant look in a shoebox for a refrigerator) Time - depends on items; cant spend all day looking for a houseboat in a small back yard. Can develop additional PC during search and apply for new warrants. (Wilson) Steagald: A valid arrest warrant as to a third person will NOT be sufficient if the police find evidence the government wants to use against a person who is not named in the warrant and who has standing in the place searched. A warrant protects only the privacy interests of the person named on the warrant, but it does not protect the privacy interests of those not named.

No

Yes No Yes

NO Exclusionary Rule Applies:

Yes Good Faith Exception Saves

EVIDENCE INADMISSIBLE
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EVIDENCE IS ADMISSIBLE

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ED

NO WARRANT NOT OBTAINED Is there a WARRANT FOURTH AMENDMENT FLOWCHART EXCEPTION? I. YES - WARRANT OBTAINED Is the Warrant VALID? I. PROB ABLE CAUSE to support warrant application? A. Defined: Is the state agents knowledge reasonably trustworthy such that a reasonable person would believe that items subject to seizure or persons subject to arrest will be found at the time and place specified? B. Test: 1. Case specific - totality of circumstances; balance all indicia of reliability. (Gates) 2. Validity of information (basis of knowledge) a. Firsthand observation or hearsay? 3. Veracity of Information a. Police assumed truthful due to oath b. If tipster, track record,& ulterior motives c. Corroboration? C. Stale: PC to search may go stale b/c drugs used or sold, or criminals move on. But other items like files in a realtors office wont go stale. (Andresen) II. PARTICULARITY as to place to be searched and items to be seized? III. NEUTRAL and DETACHED magistrate? IV. OATH or AFFIRMATION of affiant? A. Defeating the Affirmation 3 Requirement (Franks): 1. False statement of affiant; and 2. Made knowlingly or w/ reckless disregard; and 3. False statement relied upon by magistrate NO WARRANT NOT OBTAINED Is there a WARRANT EXCEPTION? I. Warrantless searches are per se unreasonable. (Katz). II. SILA: An arrestee, and the area within his immediate reach when arrested (wingspan Chimel Shuffel), is subject to a warrantless search, so long as done contemporaneous in time and place with the arrest. (Chimel) When arrested in or at a vehicle, the entire passenger area of the vehicle may normally be searched without a warrant. (Belton). III. EXIGENCY: Cops in hot pursuit of fleeing felon may make warrantless search and seizure, the scope of which may be as broad as reasonably necessary to prevent suspect from escaping, or injuring cops or public (Warden). Cops may seize w/o a warrant evidence likely to disappear before a warrant can be obtained (such as marijuana inside Ds home (McArthur), blood sample containing alcohol (Schmerber), fingernail scrapings (Cupp). OK to check house for officers safety, but if suspect arrested on front lawn, cant then go in house and search the whole place. (Vale). IV. CONSENT: A valid consent is a substitute for both a search warrant and probable cause. (Matlock). But police cant just flash a badge and enter, interpreting the occupants stunned silence as consent. (Johnson, Warden). V. Inventory searches with no procedures or with procedures vesting too much discretion in the officers are not valid. (Wells). VI. PLAIN VIEW Vii. STOP AND FRISK

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