The 4th Amendment Search and Seizure

The Bill of Rights Fourth Amendment: protections against unlawful searches and seizures Fifth Amendment: protections against self incrimination  Sixth Amendment: the right to an attorney On a theoretical level, most people probably know this but what does this mean on a practical level?

What is the 4th Amendment? The 4th amendment to the U.S. Constitution states: 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. Point out significant terms such as: persons, houses, papers, effects, unreasonable searches, warrants, probable cause

Who???? Has anyone ever been stopped on the street by police for no apparent reason? Do you know of anyone who has been stopped in the street? Has anyone ever been searched or know of anyone who has been searched? Do you know your rights regarding searches at home, in the street, in a car? Often only street knowledge, television or a "wished-for" reality.

4th Amendment prohibits unreasonable searches & seizures Search – government agents look for evidence in a manner that intrudes into a person’s legally-prtected zone of privacy. Seizure – when agents take possession of property or persons.

“The right of the people to be secure in their persons, houses, papers, and effects . . .” a. What does “persons” really mean? What about a person’s clothes? (yes) How about the wallet they are carrying? How about a person’s blood or bodily fluid? b. What does “houses” really mean? What about an apartment? A mobile home? (depends on whether it is being used as a home or as a car) c. What does “papers” really mean? What about a diary? (yes) Your email? (probably not) d. What does “effects” really mean? What about your backpack? Your collection of comics? yes)

“. . . against unreasonable searches and seizures, shall not be violated . . .” Why the qualification? Why not protect against any search? The goal is to balance individual liberty with public safety and welfare, so we draw the line at unreasonable searches. When searches are reasonable in the interest of public safety, are they not as offensive to individual liberty? b. BUT, what is unreasonable? What about a search of a person who is clearly selling drugs in public? A search of a person’s car who is being arrested for DUI? A TSA-operated body scanner at an airport?

“. . . no warrants shall issue, but upon probable cause . . .” The second part of the Amendments sets a standard of justification for searches. It prohibits searches unless they are supported by “probable cause” b. Which could be “probable cause” for searching a home? An officer sees a woman with no criminal history put a small package of drugs into her pocket before entering her house? (yes) An officer sees a known drug-dealer carry a bag of groceries into her house? (no)

Probable Cause IN GENERAL, to conduct a search, a government official must establish “probable cause” to believe that a crime has been committed, and must obtain a warrant. What is PROBABLE CAUSE? 0% No Information Hunch Reasonable Suspicion Under Circumstances Probable Cause 51%- Preponderance of Evidence 80-100% Beyond a Reasonable Doubt Under the Fourth Amendment, probable cause amounts to “more than a bare suspicion but less than evidence that would justify a conviction.” Certainty : not even an unreasonable doubt as to its truth.

4th Amendment: Search & Seizure Searches with a warrant are presumed to be reasonable (and therefore legal) Searches without a warrant are presumed to be unreasonable (and therefore illegal) unless they fall within a specific exception to the search warrant requirement (e.g high schools).

4th Amendment Violations Exclusionary Rule, Mapp v. Ohio, 367 U.S. 643 (1961) Evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant’s criminal trial. Rationale is that if police know evidence obtained in violation of the Fourth Amendment cannot be used to convict someone of a crime, they will not violate it.

For a search to be reasonable… Police officer must have Probable cause or a warrant More than a hunch but less than the burden of truth Experience in the police officer offers some lenience

For a search to be unreasonable… Searching with neither probable cause NOR a warrant Searching with no suspicion No discrimination Can police profile ? Rebellious teenager GHETTO HIPPIE

Who determines what is reasonable and unreasonable? The Court system Reasonable Unreasonable Who determines what is reasonable and unreasonable?

Searches in public schools A search is reasonable if there is a possibility that the search will find evidence that the student has violated or is violating the law or the rules of the school Random searches can be conducted by public school officials because they act a representatives of the state A warrant requirement is not necessary Its all about Safety the of the children

EXAMPLES Purses and book bags: The school official believes that with reasonable suspicion purses and book bags searches can be considered constitutional Lockers: Courts have mostly upheld locker searches Body Searches: Pat down body searches in schools are considered acceptable But strip searches are not allowed Canine Searches: Acceptable because canines explore what is in “plain smell”

Drug Tests Students involved in any extra-curricular activity may undergo random drug tests Why? Athletes are the leader of drugs culture. It is all about the health of the student

Searches in private schools Private school students have NO constitutional protection against unreasonable search and seizures May search room, purse, book bag, and locker with no suspicion

Types of Searches Searches at school, Searches at home, Searches in cars, and Searches in public places.

Basics of Search Warrants Each search warrant allows the search of only one person, place or vehicle. But more than one warrant can be issued at one time, allowing a person, place and vehicle all to be searched at once, or soon thereafter. The warrant must identify the exact area to be searched. The warrant must state what type of property is being searched. The police officer must swear under oath that the information given is true. The warrant must be issued by a neutral and properly authorized judge or magistrate. The person issuing the warrant must believe there is probable cause. Probable cause to search — evidence that leads a reasonable person to believe that it is more likely than not that if a specific place is searched, specific criminal goods will be found. Probable cause to arrest — evidence that leads a reasonable person to believe that it is more likely than not that a crime was committed and the person to be arrested is the one who committed the crime.

Exceptions to The Search Warrant and/or Probable Cause Requirements Search incident to a lawful arrest — The police can search a person and his immediate surrounding area for hidden weapons or evidence that could be destroyed (probable cause is not needed). Automobile searches — Reasonable if the police officer has probable cause to believe there is contraband in the car. Voluntary consent — If a person agrees, the police can conduct a search without a search warrant or probable cause. Hot pursuit — If police are in hot pursuit of a suspect, they do not have to get a search warrant to enter a building they saw the suspect enter. The police also can seize evidence they find while in pursuit of a felon. Emergency situations — Sometimes police do not have time to get a warrant because of an emergency situation, like a bomb scare, a person’s life is in danger, or some other urgent situation. Border and airport searches — Custom agents may search without probable cause or a warrant. The courts also allow police to conduct a “stop and frisk” without a warrant if a police officer reasonably thinks a person is behaving suspiciously and may be armed. The frisk only can be for weapons that could harm the police or a third person. If the police want to search more, a search warrant is required.

Search & Seizure Scenarios Scenario 1: Legal (trash is not private) Scenario 2: Legal (schools are “environments of the state) Scenario 3: Illegal (RV is a home) Scenario 4: Legal (fits robber description) Scenario 5: Illegal (warrant was specifically to arrest, not search) Search&SeizureScenarios

Fourth Amendment Scenarios Jigsaw Oah_serchme Get into four groups You’ll be assigned one of the following four topics: Searches at school, Searches at home, Searches in cars, and Searches in public places. Each group needs a copy of the corresponding Search Me handout Read the General Information sheet Read the case studies Think about the Focus Questions as you read Groups should work for 10 minutes to answer the questions. Then each group will share what they have learned in a 3-minute presentation

Fourth Amendment Scenarios Jigsaw (2) Oah_serchme Questions to Consider: How does the 4th Amendment regulate activities in this location? What do you think is the legal “rule” regarding searches/seizures in the location? What types of searches and seizures are allowed? Did any of the cases surprise you? Why or why not? Groups should work for 10 minutes to answer the questions. Then each group will share what they have learned in a 3-minute presentation

Debriefing/Follow-Up List the circumstances that the courts look to when deciding whether a search is permissible: Reasonableness of the search; Seriousness of the crime; Age/sensitivity of the person being searched; Where the search is occurring. Important take aways: Different standards in different locations; Balancing act between keeping community/police safe and protecting constitutional rights. Fact Patterns Handout for all students for review. Examine the scenarios with your new information about searches and seizures, and note legal and illegal searches.