1. Fourth Amendment Search and Seizure The Warrant Process

2. Analysis of search and seizure cases 1. Was there government conduct? 2. Did the defendant have a reasonable expectation of privacy? Was there a warrant? Was it valid? Was there an exception to the search warrant rule?

3. Reasonable expectation of privacy Subjective - did the person an actual expectation of privacy? (personal) Objective - is the expectation of privacy one that society is prepared to recognize.

5. Greenwood: no REP in abandoned property

6. Oliver: Open Fields Doctrine and defines curtilage : (criteria)

7. 1. the distance the property is from the house

8. 2. the presence/absence of a fence around the area

9. 3. the purpose of the area

10. 4. the measures taken to prevent public view

13. Wong Sun - evidence obtained from illegally seized evidence must also be excluded. This evidence is deemed “tainted.” It is inadmissible in court.

14. Courts have narrowed the scope of the exclusionary rule and the fruit of the poisonous tree doctrine.

16. Search Warrants Warrant requirements: 1. Must be based on probable cause. 2. Particularity - the warrant must describe with reasonable certainty the place to be searched and the item to be seized. 3. Disinterested magistrate (judicial officer) - a warrant must be issued by a neutral and detached magistrate.

17. Schools School officials are considered state officials. The 4th Amendment applies to their conduct. Lesser standard - Reasonable suspicion What is needed is a reasonable suspicion of a violation of law or school rules. Lockers may be searched without a warrant. Autos in school lots may be searched without a warrant.

18. Search Warrants Search warrants conducted without a warrant are unconstitutional unless there is a qualified exception to the warrant requirements. Violations of the Fourth and Fourteenth Amendments. Evidence obtained by warrantless searches is inadmissible in court.

19. Requirements: Search Warrant Probable cause exists when facts and circumstances with an officer’s personal knowledge, and which he has reasonably trustworthy information, are sufficient to lead a person of reasonable caution that ….

20. In the case of an Arrest Probable cause: 1. an offense has been committed, and 2 . the person to be arrested committed the 0ffense. This is similar to the probable cause standard for a “bind over” after a preliminary exam.

21. In the case of a Search Probable cause: A specifically described item to be seized will be found in the place to be searched. Police officers may search for: prints, contraband, instrumentalities and other evidence. Anything for which there is a nexus between the item and criminal activity.

22. Types of Information Contained in the affidavit. Direct info – secured by personal observation. Hearsay info – received by the officer from another person (confidential informant) who is not present for questioning by the magistrate. Issue – determining the trustworthiness of the hearsay info provided by the CI.

23. Test in Michigan There must be a basis to concluded: 1. the informant’s info was credible; OR 2. the informant’s info was reliable; AND 3. the affidavit contains affirmative allegations the informant spoke with personal knowledge.

25. A magistrate conducts “a balanced assessment of the relative weights of the indicia of reliability attending the informant’s tip.”

26. The Gates test (2 prongs):

27. 1. the basis of knowledge prong – the credibility of the informant, and

29. Particularity (cont’d) Items not named in the search warrant maybe seized if: 1. it is “immediately apparent” they are evidence of other crimes, and 2. probable cause exists to believe the item is connected to criminal activity.

30. Requirements: Search Warrant Disinterested magistrate (judicial officer) Warrant must be issued by a “neutral and detached” magistrate. Not a rubber stamp for the police.

32. Required by Michigan statute and the Fourth Amendment.

33. Must wait a reasonable time for the door to be answered before making a forcible entry.

34. Apply on case by case basis (question of fact)

36. Modern Technology Beepers – Thermal Imaging – Aerial Surveillance – Dogs Movement and electronic detection in public areas is allowed without a search warrant. But once the surveillance is brought into the home, the Fourth Amendment requires a search warrant.

38. Conduct of the officer: (either)

39. 1. objectively viewed valid conduct.

40. 2. subjective motive of the officer.

42. Detentions A detention occurs when a reasonable person would believe he is not free to leave. The police may detain a person for investigatory purposes even though they lack probable cause. To make such a stop, the police must have reasonable suspicion of criminal activity.

44. 1. observation of unusual conduct;

45. 2. reasonable suspicion of criminal activity; and

46. 3. articulable facts to justify that suspicion (the police must be able to say why they stopped you.

49. Concerning :

50. 1. finding evidence;

51. 2. officer safety; or

52. 3. protecting the public.

54. 1. the arrestee’s person and things immediately associated with that person.

55. 2. the area within the arrestee’s immediate control – the “grabbing, lunging or wingspan area.”

57. 1. the inherent mobility of an auto, and

58. 2. the diminished expectation of privacy for autos.

61. 1. the object is viewed from a lawful vantage point;

62. 2. the officer has a lawful right of access to the object; and

64. 1. the object is discovered during the execution of a valid search warrant;

65. 2. the object is discovered during the execution of a valid in home arrest;

66. 3. the object is discovered during a search under an exception to the warrant requirement; or

68. Consent is a question of voluntariness determined by the totality of circumstance.

69. Any person with the apparent right to use or occupy the property may consent to a search.

71. 1. hot pursuit of a felony;

72. 2. imminent destruction of evidence;

73. 3. the need to prevent a suspect’s escape; or

75. Standing Claims to enforce constitutional right may only be raised by those who have “standing” to assert them. Fourth Amendment right are personal. They may not be vicariously asserted.

76. Final Note When in doubt, get a warrant.