NL400 – Exam Approach and Key Rules – 4th Amendment/S&S

4th AMENDMENT MATH:

1. Government Actor 2. Looking for 3. Involving places or things in

Evidence of a Crime which there is a Reasonable
Expectation of Privacy

Equals

4th Amendment Search

A Lawful
Search
Needs

Valid Warrant OR Exception to the

warrant requirement

STEP 1: Is it a 4th A search?

Rule: Where there is a gov’t actor, looking for evidence of a crime, in places or things in which there is a REP,
a search subject to the 4th Amendment has occurred.
1. Gov’t Actor: includes cops and military officials acting in their official capacity, or someone at their direction
2. Looking for Evidence: When is an inspection a search? If it’s looking for evidence/contraband AND any of
these, gov’t must prove it really was a legit inspection (clear and convincing):
a) unscheduled and immediately follow report
b) particular individuals
c) differing levels of intrusion
3. REP: REP exists when there is both a subjective (you believe) and objective (society accepts) expectation.
a) It must be YOUR privacy interest to raise a 4th A claim (standing)
b) Residence, places you’re an overnight guest, and most personal property: Yes. Gov’t employee +
gov’t equip + gov’t use: No. Everything else: Maybe – depends on the circumstances.

STEP 2: If a 4th A search, is there a valid warrant?

Rule: For a search to be lawful, police need a warrant based on probable cause (PC) that crime was committed
and the evidence they are looking for is likely be found in the place they want to search.
1. Issued by CO who own the property/Judge acting in neutral and detached manner
2. Has all three required parts:
a) What: person or things to be seized
b) Where: person or place to be searched
c) Why: PC – the reasonable belief (not just a hunch) that a crime has been committed and the evidence
they are looking for is likely to be found in the place they want to search
3. CO/Judge must consider the totality of the circumstances: e.g., source, credibility, timeliness
4. Police obeyed the warrant
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 NL400 – Exam Approach and Key Rules – 4th Amendment/S&S

STEP 3: If no valid warrant, is there an exception?

Rule: If there is no valid warrant, the search is unlawful unless it meets an exception to the warrant requirement.
1. Consent – warrant not required when the subject voluntarily gives permission to search. Gov’t must prove
voluntariness (clear and convincing)
a) Person can refuse or withdraw, does not create PC for a warrant
b) Police do not have to inform person of right to refuse
3 Party Consent – can give if they have joint access or control.
rd

Exam tip: do they really have joint access/control over the specific area/thing the cops want to search?
2. Plain view
a) Gov’t actor in a place where they have lawful right to be, AND
b) Can see contraband/evidence with unobstructed view
3. Search incident to arrest – in conjunction with arrest, police may search the person and surrounding area for
safety or to prevent destruction of evidence
a) Must be reasonable, e.g., what can person arrested actually reach?
b) Cannot search cell phones based on this (can seize, but need warrant to search)
4. Stop and frisk (Terry stop) – cops can detain people to investigate further when they have reasonable
suspicion of criminal activity
a) Reasonable suspicion is less than PC, but still must have articulable facts (not just a hunch)
b) Once stopped, if reasonable belief that armed and dangerous, can do pat down
c) If weapon or contraband is detected by “plain feel” cops can seize

STEP 4: No warrant and no exception?

Rule: Evidence discovered during unlawful searches, or by exploiting the unlawfully obtained evidence, should
be excluded from criminal trials.
1. Sometimes, an unlawful search can be fixed by a consensual search later, depending on:
a) Time
b) Intervening circumstances
c) Government conduct