Search and seizure by shuifanglj


The 4th
   Mr Koepping is NOT an attorney. This discussion
    is for the purpose of explaining general
    constitutional principles only. Do not rely on this
    material in determining what to do if you are
    involved in a criminal investigation. You should
    contact an attorney if you have a question about
    your legal rights in any specific case.
   Mr. Koepping will NOT post bail for you so do
    NOT call him and ask.
The Fourth Amendment

Full Text

   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 Warrants
   shall not be issued, but upon
   probable cause, supported by
   Oath or affirmation, and
   particularly describing the
   place to be searched, and the
   persons or things to be
The Reasonableness clause
   “The right of the people to be secure in their
    persons, houses, papers, and effects against
    unreasonable searches and seizures shall not be
    violated” (emphasis added)
   Applies to the federal government and state
   Incorporated by Wolfe v. Colorado in 1949
Expectation of privacy
   A person’s home has a higher expectation of
    privacy than one’s garbage at the curb.
   Generally they require a warrant from a judge, but
    there are some exceptions:
   Consent: subject agrees to search – police do not
    need to inform suspect of right to refuse
   Incident to arrest: search of person or areas within
    their area of control – including the inside of cars
    and any containers within
   Exigent circumstances: if the police are in “hot
    pursuit” they don’t necessarily need a warrant
Searches (cont.)
   Loss of evidence: if there is a danger of evidence being
    destroyed – scraping of fingernails, blood tests
   Motor vehicles (have a lesser expectation of privacy): if
    probable cause to believe car (including trunk) contains
    contraband, evidence, been used to commit a crime, or its
    occupants have committed a crime (including a traffic
   Safety: see Terry Stop in a moment.
   Plain view: inadvertently seeing contraband or evidence as
    part of an otherwise legal search
Levels of police and citizen
   Approach: Interaction with police that does
    not use physical force or show of authority
    (asking some questions after approaching a
    person or asking to search luggage) requires
    no basis for suspicion of a particular
Terry Stop
   Terry Stop: (Terry v. Ohio, 1968) police may stop
    and frisk (but not arrest) suspects who show “unusual
    conduct” that leads the officer reasonably conclude
    that criminal activity may be afoot or that the
    suspect is armed
Encounters (cont.)
   Arrests: requires probable cause (as defined
    by enough evidence to convince a reasonable
    person that the suspect committed a specific
    crime) – these can include flight, furtive
    movements, in the company of a known
    offender at or near time of offense, false
    answers to police, or stops for minor traffic
In the schools
   New Jersey v TLO (1985) – school officials don’t
    need a warrant to search a student, they only need
    “reasonable suspicion” (for example: tips, observing
    suspicious activity, history of similar offences)
   Vernonia v Acton (1998) – schools can drug test
    students who are members of athletic teams
   Safford Unified School District v Redding (2009) –
    The school’s searches cannot extend to strip

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