The Fourth Amendment Search and Seizure: What are Your Rights?

The Fourth AmendmentThe Fourth Amendment

Search Search

andand Seizure: Seizure:

What areWhat are

Your Your Rights?Rights?

The Fourth AmendmentThe Fourth Amendment

Search Search

andand Seizure: Seizure:

What areWhat are

Your Your Rights?Rights?

The Fourth The Fourth AmendmentAmendment

The right of the people to be secure in The right of the people to be secure in their persons, houses, papers and their persons, houses, papers and effects, against unreasonable searches effects, against unreasonable searches and seizures, shall not be violated, and and seizures, shall not be violated, and no Warrants shall issue, but upon no Warrants shall issue, but upon probable cause, supported by Oath or probable cause, supported by Oath or affirmation, and particularly describing affirmation, and particularly describing the place to be searched, and the the place to be searched, and the persons or things to be seized.persons or things to be seized.

Search & Seizure Search & Seizure ModelModel

1) WHO conducted the 1) WHO conducted the search/seizure?search/seizure?

2) WHAT has been 2) WHAT has been searched/seized?searched/seized?

3) Was there a SEARCH/SEIZURE?3) Was there a SEARCH/SEIZURE?

4) If so, was it REASONABLE4) If so, was it REASONABLE

Used to determine if a search and/or seizure has occurred, and if it has occurred, was it reasonable (legal)

1) WHO conducted the 1) WHO conducted the search search

and/or seizure?and/or seizure?Under the Fourth Amendment Under the Fourth Amendment a search or seizure must a search or seizure must involve action by an agency or involve action by an agency or official of the official of the governmentgovernment

2) WHAT has been 2) WHAT has been searched and/or seized?searched and/or seized?

Was it a person, house, paper Was it a person, house, paper and/or “effect” (other and/or “effect” (other possesion)possesion)

3) Was there a SEARCH 3) Was there a SEARCH and/or SEIZURE?and/or SEIZURE?

The Supreme Court has defined The Supreme Court has defined “Search”“Search” as any governmental as any governmental intrusion into something in intrusion into something in which a person has a which a person has a reasonable expectation of reasonable expectation of privacyprivacy. .

3) Was there a SEARCH 3) Was there a SEARCH and/or SEIZURE?and/or SEIZURE?

The Supreme Court has defined The Supreme Court has defined “Seizure”“Seizure” as any taking into as any taking into possession, custody or controlpossession, custody or control

4) If there was a search 4) If there was a search and/or seizure, was it and/or seizure, was it

REASONABLE?REASONABLE?Was there a Was there a valid search or valid search or seizure warrant?seizure warrant?

Or, did one of the Or, did one of the exceptions to exceptions to the the warrant requirementwarrant requirement apply?apply?

Cases: Search and/or Cases: Search and/or Seizure?Seizure?

1) Lucy breaks into her ex boyfriend’s 1) Lucy breaks into her ex boyfriend’s apartment and steals some of her apartment and steals some of her old love letters to him.old love letters to him.

2) The police order Joe to have a blood 2) The police order Joe to have a blood test to determine how much alcohol test to determine how much alcohol he has in his bloodstreamhe has in his bloodstream


3) Officer Jones stops Tim and asks 3) Officer Jones stops Tim and asks him what he is doing, then looks him what he is doing, then looks through the suitcase Tim is through the suitcase Tim is carrying.carrying.

4) Tim is arrested and taken to jail.4) Tim is arrested and taken to jail.

5) The FBI puts a wiretap on Ellen’s 5) The FBI puts a wiretap on Ellen’s telephone and listens to her telephone and listens to her conversations.conversations.

Reasonable vs Reasonable vs UnreasonableUnreasonable

For a search/seizure to be For a search/seizure to be reasonable there must be a warrant reasonable there must be a warrant issued by a judge or magistrate issued by a judge or magistrate

The police must have probable cause The police must have probable cause to convince a judge to sign a warrantto convince a judge to sign a warrant

There are also some exceptions to There are also some exceptions to the warrant requirement.the warrant requirement.

Probable CauseProbable Cause

There must be good reason to There must be good reason to believe that a crime believe that a crime has beenhas been, , is beingis being, or , or is about to beis about to be committed, and that the person, committed, and that the person, place or thing which is to be place or thing which is to be searched or seized is involved in searched or seized is involved in some way.some way.

Exceptions to the Exceptions to the Warrant RequirementWarrant Requirement

1) Search Incident to a Lawful 1) Search Incident to a Lawful ArrestArrestextends to everything w/in arrestee’s extends to everything w/in arrestee’s immediate controlimmediate control

2) Stop and Frisk2) Stop and Friskcan frisk outer layer of clothing withcan frisk outer layer of clothing with “articulable suspicion” of crime “articulable suspicion” of crime

3) Emergency Situations3) Emergency SituationsBomb threats, burning buildings, etc.Bomb threats, burning buildings, etc.


4) Hot Pursuit4) Hot PursuitWarrant not required for places police Warrant not required for places police follow suspect into.follow suspect into.

5) Items connected with crime in Plain 5) Items connected with crime in Plain ViewViewIf police had a right to be there in the first place If police had a right to be there in the first place

6) Consent6) ConsentA person may ‘knowingly and voluntarily’ let A person may ‘knowingly and voluntarily’ let police search w/o a warrant. Must be that police search w/o a warrant. Must be that person’s or common property. In some case eg. person’s or common property. In some case eg. parent/child, teacher/student, a person may parent/child, teacher/student, a person may legally let police search someone else’s legally let police search someone else’s propertyproperty


7)Abandoned Property7)Abandoned PropertyOnce you abandon something you give up the Once you abandon something you give up the expectation of privacy.expectation of privacy.

8) Border & Airline Searches8) Border & Airline SearchesCustoms Agents may search w/o warrant OR Customs Agents may search w/o warrant OR probable cause. Airline personnel may search probable cause. Airline personnel may search passengers and carry on luggage with metal passengers and carry on luggage with metal detectors and/or x-raysdetectors and/or x-rays

9) Vehicle Searches9) Vehicle SearchesPolice may search a vehicle WITH Probable Police may search a vehicle WITH Probable Cause W/O WarrantCause W/O Warrant


Reasonable or Reasonable or Unreasonable?Unreasonable?

1) Customs agents spend an entire 1) Customs agents spend an entire day going through Vivian’s luggage day going through Vivian’s luggage on her return from Istanbul. They on her return from Istanbul. They have no Warrant.have no Warrant.

2) After Suzanne checks out of her 2) After Suzanne checks out of her hotel room the police come in and hotel room the police come in and find receipts from illegal gambling find receipts from illegal gambling in the wastebasket. They have no in the wastebasket. They have no Warrant.Warrant.


Reasonable or Reasonable or Unreasonable?Unreasonable?3) The police sneak into Gail’s yard and see 3) The police sneak into Gail’s yard and see

200 stolen Ipods through her kitchen 200 stolen Ipods through her kitchen window.window.

4) The police go to Joe’s house, his 4) The police go to Joe’s house, his girlfriend (and roommate) agrees to let girlfriend (and roommate) agrees to let them search the house for marijuana.them search the house for marijuana.

5) Carol’s neighbors hear screams from her 5) Carol’s neighbors hear screams from her house and call the police. The police house and call the police. The police arrive, hear the screams, enter the arrive, hear the screams, enter the house to investigate. They find stolen house to investigate. They find stolen goods on the dining room tablegoods on the dining room table..

United States vs Ross, 1982

United States vs Ross, United States vs Ross, 19821982

1) Did Detective Marcum’s opening of “Bandit’s” car 1) Did Detective Marcum’s opening of “Bandit’s” car trunk constitute a “search”? What about the paper trunk constitute a “search”? What about the paper bag? The cellophane envelopes? Explain your bag? The cellophane envelopes? Explain your answers.answers.

2) Assume that that opening the trunk, the brown 2) Assume that that opening the trunk, the brown bag and cellophane envelopes were “searches”. bag and cellophane envelopes were “searches”. Do you think that they were “reasonable” under Do you think that they were “reasonable” under the circumstances or should the officers have the circumstances or should the officers have secured a warrant first? Why or why not?secured a warrant first? Why or why not?

3) Was the unzipping of the red leather pouch at the 3) Was the unzipping of the red leather pouch at the police station a “search”? If so, was it “reasonable” police station a “search”? If so, was it “reasonable” under the circumstances or should the officers under the circumstances or should the officers have obtained a warrant first? Why or why not?have obtained a warrant first? Why or why not?

United States vs Ross, United States vs Ross, 19821982

In a 6-3 decision the United States In a 6-3 decision the United States Supreme Court ruled that the searches Supreme Court ruled that the searches and seizures were reasonable and did and seizures were reasonable and did not violate Mr. Ross’ Fourth Amendment not violate Mr. Ross’ Fourth Amendment rights. rights.

Cars are easily moved and evidence can Cars are easily moved and evidence can easily be removed, concealed or easily be removed, concealed or destroyeddestroyed

Justices White and Marshall wrote Justices White and Marshall wrote dissenting opinions.dissenting opinions.

Group Work on CasesGroup Work on Cases

Work in groups of fourWork in groups of four Use the Analytical Model to work Use the Analytical Model to work

through the cases on the handoutthrough the cases on the handout Write down your answersWrite down your answers Be prepared to present your answers Be prepared to present your answers

to the class and discussto the class and discuss

New Jersey vs T.L.O., New Jersey vs T.L.O., 19851985

Read the facts of the case involving Read the facts of the case involving high school students faced with high school students faced with search and seizuresearch and seizure

Be prepared to discuss and answer Be prepared to discuss and answer questions about the case at our next questions about the case at our next meeting.meeting.

Be prepared for a quiz on your Be prepared for a quiz on your Fourth Amendment Rights in the Fourth Amendment Rights in the near future.near future.

Documents

The Fourth Amendment Search and Seizure: What are Your Rights?