Crim_Pro_Davis1 - Crim Pro Fall 2001 I Search Seizure 4th...

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Crim Pro Fall 2001 I. th Amendment a. 4 th provides that people be secure in their persons, houses, paper and effects, against shall not be violated, and no warrants shall issue but upon probable cause , supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized i. Search – governmental intrusion into area where a person has a reasonable and justifiable expectation of privacy ii. Seizure – the exercise of control by the gov over a person or thing iii. Reasonableness – dependant on circumstances; certain searches and seizures considered reasonable only if the gov has first obtained a warrant b. 4 th Amend – Threshold Requirements i. Analytical approach 1. Does D have a 4 th Amend right ? a. Was there gov conduct ? b. Did the D have a reasonable expectation of privacy? 2. Did the police have a valid warrant ? 3. If no warrant , did they make a valid warrantless search and seizure ? ii. Reasonable Expectation Test: Katz (phone call recorded by device placed atop of public phone booth) 1. 2 requirements: a. person exhibited subjective expectation of privacy i. subjective expectation of privacy – individual takes affirmative steps to protect privacy interests b. does society recognize this expectation as reasonable 2. RATIONALE: 4 th protects people, not places 3. areas where there exists NO privacy interests: a. knowingly expose to public b. public movements c. open fields w/ no privacy interests – fly-overs okay d. outside curtilage – land or yard adjoining house, usually w/in enclosure e. abandoned things f. inadvertently exposed g. private party searches (unless deputized by law enforcement) h. consented searches i. drug sniffing animals – no reasonable expectation of privacy, opening alerted container is searched j. prison cells k. VIN numbers l. Numbers dialed on telephone m. Banking info on checks n. EXCEPTION: Kyllo – protecting the home from tech searches like heat sensing searches from outside
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iii. Reasonableness v. Warrant Clause 1. to be reasonable under the 4 th Amend, most searches must be pursuant to warrant, this requirement serves as a check against unfettered police discretion requiring police to apply to neutral magistrate for permission to conduct search 2. Johnson – warrants are per se required for search & seizures, subject to exceptions (consent to enter does NOT mean consent to search) 3. Warrants a. Requirements i. Issued by neutral and detached magistrate ii. Based upon probable cause established from facts submitted to magistrate by a gov agent upon oath and affirmation iii. App particularly describes place to be searched and items to be seized b. Probable Cause i. Based on totality of circumstances submitted to magistrate ii. Search: fair probability that contraband or evidence of a crime will be found in a particular place – magistrate had a substantial basis for concluding search would uncover
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Crim_Pro_Davis1 - Crim Pro Fall 2001 I Search Seizure 4th...

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