Fourth Amendment: Evidentiary Search and Seizure; With Warrant

Question 1

What is the general rule re: searches and warrants?

Answer 1

In general, police must have a warrant to conduct a search UNLESS the search falls within 1 of 6 exceptions:

1. Search incident to arrest
2. automobile exception
3. plain view
4. consent
5. stop and frisk
6. hot pursuit, exigent circumstances, evanescent evidence

Question 2

What are the requirements for a valid warrant (4)?

Answer 2

1. warrant must be based on PROBABLE CAUSE to believe that evidence will be found at time warrant is executed
2. must be issued by a NEUTRAL and DETACHED magistrate
3. must describe with REASONABLE PARTICULARITY the PLACE TO BE SEARCHED and ITEMS TO BE SEIZED
4. must be PROPERLY EXECUTED?
   - must be executed without unreasonable delay
   - police must knock and announce UNLESS officer has REASONABLE SUSPICION based on facts that announcing would be dangerous or futile or would inhibit investigation

Question 3

With regards to the probable cause requirement of a warrant, how may probable cause be adequately shown by officers in order to obtain a warrant?

Answer 3

• officers must submit to magistrate an AFFIDAVIT
• setting forth SUFFICIENT FACTS
• to ENABLE magistrate to make a PC determination INDEPENDENT of the officer’s conclusions

Question 4

With regards to the probable cause requirement of a warrant, what is the rule with regards to use of informant’s?

Answer 4

• Affidavit based on informant’s tip must meet the “totality of circumstances” test.
• Under this test, affidavit MAY be sufficient even though reliability and credibility of the informant or his basis of knowledge are not established.

NOTE –> informant’s identity generally need not be revealed

Question 5

When will a search warrant based on the basis of an affidavit be invalid?

Answer 5

A search warrant issued on the basis of an affidavit will be invalid if D can establish all 3 of the following:

1. A FALSE statement was included in the affidavit by the affiant;
2. Affiant INTENTIONALLY OR RECKLESSLY included the false statement; AND
3. the false statement was MATERIAL to finding of PROBABLE CAUSE

Question 6

What is the rule w regards to police relying on a valid that is later found not to be unsupported by PC?

Answer 6

Evidence obtained by police in reliance on a FACIALLY VALID warrant is admissible, even if the warrant was ultimately found not to be supported by PC

Question 7

May a warrant be obtained to search premises of non-suspects?

Answer 7

Yes, as long as there is PC to believe evidence will be found there.

Question 8

What is the rule with regards to a neutral and detached magistrate?

Answer 8

Magistrate who issues warrant must be neutral and detached.

EXAMPLE –> state AG is not neutral

Question 9

What are the rules w regards to execution of the warrant?

Answer 9

1. Only police (not private citizens) may execute a warrant
2. warrant must be executed without UNREASONABLE DELAY
3. Police must KNOCK and ANNOUNCE their purpose UNLESS based on REASONABLE SUSPICION based on facts, officer believes it would be dangerous, futile, or would inhibit investigation

Question 10

What is the rule with regards to the scope of a search?

What may police seize?

Answer 10

Scope of search –> limited to what is REASONABLY NECESSARY to discover items described in the warrant

Police may seize –> any CONTRABAND or FRUITS or INSTRUMENTALITIES of a crime that they discover, regardless of whether specified in the warrant

Question 11

Does violation of the “knock and announce rule” lead to exclusion of evidence?

Answer 11

No

Question 12

How does a warrant effect persons on the premises to be searched?

Answer 12

Persons on the premises –> may be detained during the search (only if they are in the immediate vicinity of premises when being searched)

HOWEVER —> they MAY NOT be searched if they are not named in the warrant

NOTE –> warrant does NOT give police authority to follow, stop, detain, search people who left premises shortly before warrant is executed

NOTE –> if officer has other proper reason to do a search, they can (for example stop and frisk)