Criminal-Procedure-II-Schaffer-Sp07

Criminal-Procedure-II-Schaffer-Sp07 - THE 4 th AMENDMENT...

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Unformatted text preview: THE 4 th AMENDMENT 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 no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.- The people as a limiting term o Illegal immigrants in US will receive the benefit of the 4 th Amend- Reasonableness clause applies to both searches and seizures- Warrants clause o Searches and seizures are presumed to be unreasonable unless carried out pursuant to a warrant Antecedent review by DNM confines scope of search (particularity clause), limits police discretion ( Johnson v. U.S. ) DNM looking at affidavit that recites the claimed factual basis for the issuance of the warrant, usually signed by cop o In affidavit will be assertions of fact either knowledge of cop or statement by informant persons willing to affirm truth of their statements and be held accountable for their representations DNM asks: Assuming facts to be true, is there probable cause? Who is vouching for fact cop or informant? How did they get knowledge? Is person declaring fact a truth-teller? o Probable cause reqt threshold must show to support a warrant application To protect against unjustified searches and seizures A large number of searches now upheld as reasonable when there was no warrant and/or no probable cause Probable cause not defined = less than a preponderance of the evidence (which is 50% + iota) o Warrants clause + probable cause req are a threshold if state has both, state power is gigantic- Particularity clause o Govt must be able to demonstrate its factually based interest in people, places, things before using its power to disturb them also to ensure proposed search not excessive- State action requirement- No remedy provided in amend (doesnt mention the exclusionary rule)- Not a general / absolute protector of some general right of privacy o Implicitly recognizes legitimacy of reasonable searches, warrants directing seizure, and probable cause std WHAT IS A SEARCH / SEIZURE? Katz v. U.S. - Held: Unreasonable search / seizure of s words spoken in the closed telephone booth o 4 th Amendment protects people, not places What a person knowingly exposes to the public, even in his own home or office, not subject of 4 th protection. But what he seeks to preserve as private, even in an area accessible to public, may be constitutionally protected. Katz Test (from Harlan concurrence) (1) Has the individual manifested an actual subjective expectation of privacy?...
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Criminal-Procedure-II-Schaffer-Sp07 - THE 4 th AMENDMENT...

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