Disclaimer: This is not a lesson on how to hide contraband and get away with it! These laws are

meant to PROTECT you from intrusions of privacy, not to ensure that you won’t get in trouble when searched.

4th Amendment

In October, investigators say Officer Weems pulled over a car at 2021 North Highland Avenue in Madison County. Weems claimed the car did not have headlights.According to police, Weems conducted a pat down of the passenger and removed $200 from the man’s pocket.

Veteran Jackson police officer Robbie Weems has been indicted on charges of theft and official misconduct he stole money from a passenger during a traffic stop.

Protects people from unreasonable searches and

seizures by the government.

Need Search Warrant (probable cause, oath, and

description of place)

HOWEVER not a guarantee against all searches and

seizures, but only those that are deemed unreasonable

under the law.

Seems simple but search and seizure law is complex

4th Amendment

Terms to KnowUNREASONABLE: Arbitrary; not guided by or based on good sense

PROBABLE CAUSE: police has the facts that support the belief that the person in question broke the law

In other words… police can’t search a home, car, or person without some kind of justification (usually a reasonable belief that they will find evidence of a crime there OR stop a crime in progress)Payton v. New York, 445 U.S. 573 (1980)

How to determine an “Unreasonable Search?”FIRST STEP – DEFENSE ATTORNEY!

Court looks at facts and circumstances of each case*IF unreasonable search determined, any evidence found in search cannot be used at the trial - CALLED EXCLUSIONARY RULE *not a “get out of trial” cardEvidence seized cannot be used at trial

First Question – Was there a search warrant?Def: a piece of paper from a judge that gives an

officer permission to search a person or place

- Officer has PROBABLE CAUSE - Officer must present UNDER OATH - NEUTRAL magistrate (no connection or overzealous to the case) State v. Freemont

- Officer must SPECIFY what they are LOOKING FOR and WHERE they want to look Payton v. New York, 445 U.S. 573 (1980).

Judge convinced that there is a REAL NEED to search

Search Warrant

Basics

#1. Limited Time Period (avg 10 days)

#2. Some States – only executed during the DAY

#3. SPECIFIC - Does NOT necessarily authorize a general search of EVERYTHING in a specified place

Police like search warrants for drugs and/or small stolen items because they allow them to search EVERYWHERE because these thing could be hidden anywhere.

So if they happen to find a stash of kiddie porn in a desk drawer it would be completely legal evidence to use in court

Scenario – not a search of everywhere

If the police have the warrant to search a house for stolen 20” TVs or other larger items, it would be UNREASONABLE for them to look in desk drawers, envelopes, or other small places where a TV could not possibly be hidden

What if they find something else (ex: drugs) while searching for the TVs?

. • If cop opens a closet and find drugs in there, it was a reasonable place to search (a TV will fit in the closet).

• The drugs can be used against the suspect

• However, if cop opens a drawer where a TV could not fit, and finds drugs, it is inadmissible.

Search Warrant exceptions

#1 Lawful arrest - most common exceptionAllows police to search a LAWFULLY arrested person and the area IMMEDIATELY around that person for hidden weapons or for evidence that might be destroyed

United States v. Robinson, 414 U.S. 218 (1973)

Fred is arrested for being drunk and disorderly. When he is

taken to the police station, he is searched and narcotics are

found in his pocket. He may be arrested for possession.

If arrested in house, officers allowed to search places where

someone might jump out or where the arrestee might have

a weapon.HIS/HER ENTIRE HOUSE may

NOT be searched unless police have a search warrant as well

as arrest warrant

#2 CONSENTWhen person VOLUNTARILY agrees to a search WITHOUT Probable Cause AND Search Warrant

Davis v. United States, 328 U.S. 582 (1946)

**Remember back to the Intro Scenarios:A person may legally allow the police to conduct a search of another person’s property (parent/child)

#3 Plain ViewIf object connected to crime is in PLAIN VIEW and can be seen by an officer from a place he/she HAS A RIGHT to be, it CAN BE SEIZED without a warrant

Maryland v. Macon, 472 U.S. 463 (1985).

Purse – NOT PLAIN VIEWCop to search a bag, probable cause is needed - Can ask you – if you say yes – they can - if you say no – they can’t unless they arrest me (#1)

Go back to TVs ScenarioCops can’t open drawer and charge you with drug possession

HOWEVER if drawer was already open and there are drugs in it, then they are in "Plain View".

They will just go call the judge and have him fax or email an update to the warrant. (few minutes, to a few days)

The officer did not have to open the drawer and search it, so those items are admissible in court

#4 Stop and Frisk

If officer thinks a person is behaving suspiciously and is likely armed, he/she can be searched

pat down out clothes – cannot manipulate objects to feel what they are) if cop feels an object that is NOT a weapon but is immediately apparent to the cops as drugs, he can seize the drugs

Terry v. Ohio, 392 U.S. 1 (1968)Minnesota v. Dickerson, 508 U.S. 366 (1993)

Why allowed?*safety of officers and bystanders (who might be injured by a person carrying a concealed weapon)*Don’t need to give reason to suspect, only to a supervisor and/or judge later on (that he/she had a reason that he/she thought a crime had happened or about to happen)

Anyone heard of the Terry Stop? Real Case 1968What is it?Def: a brief seizure of a person for the purpose of investigation - as part of this question-asking, officers are allowed to do a LIMITED frisk for their OWN SAFETY (to make sure the person to whom they are talking doesn’t have a weapon)Supreme Court Challenge Court said Terry Stop is brief and less intrusive than an arrest and full search – lower standard justified

Reasons to stop someone:- Loitering and appears not to fit the time and place (looking for something) - Matches a “WANTED” poster - Acts strangely, or emotional, fearful, angry, intoxicated - Running away - Present at a crime scene

Depends on - # of officers present, # of suspects and size

Reasons to stop someone:AND - Present in a high-crime area (HOWEVER must be with something else)*Sam Wardlow CaseWardlow – 44 yr old black man

- Standing on sidewalk in Chicago’s West Side (a high crime area) - He sees police officers - EVEN THOUGH HE WASN’T DOING ANYTHING WRONG…he started running away

Police saw him running – chased him down Caught him – patted him down – found a handgunThe fact that he was running in a high crime area gave them “reasonable suspicion” that he may have been doing something illegal ~ Illinois v. Wardlow

#5 Emergency Situations when a crime is being committed (need probable cause)In certain emergencies searching a building after a telephoned bomb threat, entering a house after smelling smoke or hearing screams, and other situations where police doesn’t have time to get a warrant

Hot Pursuit of a suspect – can enter a building that the suspect entered and can also seize evidence

Officer Smith is walking past Mrs. Jones’ store when she rushes out screaming “Help, police!” She tells officer that she has been robbed by someone who had a gun, a red sweatshirt, and glasses. The person took the credit card machine with him along with a paper bag of the money from the cash register. The officer looks up and sees a man with the same description running and carrying a

paper bag. The officer MAY arrest the man and use any objects on him as evidence against him.

BUT if the officer does NOT see anyone and takes Mrs. Jones to the

police station where she identifies the robber from a lineup, an arrest warrant is necessary before the

officer goes to his house and arrests him . A search warrant is also

necessary to search the suspects house for the stolen money and

credit card machine.

#6 Border/Airport Searches

Customs agents are authorized to search without warrants and without probable cause- Baggage (including carry-on)- Person (metal detectors)- Purse and/or Wallet- Vehicles- Similar belongings entering country

United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

#7 Public PlaceLaw enforcement officials do not need a warrant to search a trash can that a homeowner sets out for collection in a publicly accessible area next to his house, according to a federal appeals court ruling.

Also applies to conversations with wiretapped informantsU.S. v. Redmon, No. 96-3361, 7th Cir., March 10, 1998.White (1971)

No reasonable expectation of privacy for things that you make no definite attempt to keep private

Review:Legal or Illegal Search? Why?

Police see James standing at a bus stop on a downtown street, in an area where there is extensive drug dealing. The officers ask James if they can look in his bag and he says yes. They open the bag and find drugs

Legal Search - CONSENT

Review:Legal or Illegal Search? Why?

Legal Search – PUBLIC PLACE

After Tyler checks out of a hotel, the cops ask the manager to turn over the contents of the trash can, where they find notes planning a murder

Review:Legal or Illegal Search? Why?

Illegal Search – NO SEARCH WARRANT

Ray is seen shoplifting at the mall. Police chase him home and arrest him down the street from his house. They search the house without a warrant and find a lot of stolen car stereos

#8 YOUTH An officer can stop and take to youth in 3 situations 

Consensual EncounterIf a officer sees a

youth in public place, he does not need a warrant to talk to the youth. The youth does not need to answer if he does not want to. HOWEVER, not talking with an officer could help the officer form “reasonable suspicion”

#8 YOUTH 

Reasonable SuspicionIf the officer has reasonable suspicion that a

youth is committing a crime, is about to commit a crime, or is likely to commit a crime, the officer can detain the person and ask them a few questions

#8 YOUTH  

Welfare ChecksOfficers can ask questions to make sure that the

youth is o.k. (past curfew, skipping school, look sick)

#9 VEHICLE SEARCHES• Consent searches – if citizens voluntarily agrees to a

search, they waive their Fourth Amendment rights (the right to be protected against unreasonable search and seizure). Anything found in the vehicle from this search can be used as evidence against a defendant.

• Plain view rule – if there is something illegal or contraband in plain view from the outside of the vehicle, the police officer is entitled to conduct a search.

• Incident to arrest – if a driver is arrested for driving under the influence, authorities are permitted to perform a vehicle search.

• Exigent circumstances – if the police officer feels that he/she or bystanders are at risk, or evidence is in danger of being destroyed, it is lawful to conduct a search.

• Probable cause – if the police officer has reason to believe that a crime has been or is about to be committed, a warrant-less search is permissible.

https://www.youtube.com/watch?v=eDJrQBwJpqk

Search and Seizures, Due Process, and Public

Schools

Homework - TONIGHT

• 4th Amendment- “unreasonable” searches and seizures– Privacy and making sure public schools don’t get

overzealous in investigating violations• 5th Amendment – “Due Process”– School officials who plan to discipline a student must

provide the alleged wrongdoer with 2 rights:(1) Schools CANNOT hold or punish without specific

Information about the charges and the evidence behind it

(2) A chance to tell his/her story (not elaborate – P. Office)

Situations where 4th and 5th would likely apply:

(1)Drug Testing students in extracurricular activities

(2)Drug-sniffing dogs on campus(3)Locker searches and metal

detectors(4)Backpacks, wallet, personal

computer searches(5)Searching student’s car in parking

lot(6)Pocket Searches

BALANCEBetween school safety and discipline versus student

rights

Criminal StandardLaw enforcement – “probable cause” that a crime had been committed

= presenting evidence to judge – obtain warrant – search private property

School Standard“reasonable suspicion” – no warrant necessary

Why different standard? AGE and VULNERABILITY of student population and need of school officials to look out for their health and safety

PROTECT SCHOOL AND EDUCATIONAL PROCESSIs it against school policy ?

Students’ Rights

(1)If contraband items are in plain view – can be seized without probable cause, reasonable suspicion, or a warrant

Students’ Rights

(2) Lockers-expectancy of privacy – none-Why? Schools own lockers (policy) *control lockersDO NOT NEED REASONABLE INDIVIDUALIZED SUSPICION TO SEARCH LOCKERSThe search may begin when: a drug dog indicates that there may be some contraband such as drugs in the locker, when a student reports concern of what another student may have in his locker, or when the administration calls for a random search.

Students’ Rights

(3) Purses and Book BagsNEED REASONABLE SUSPICION to search personal items

New Jersey v. T.L.O.

New Jersey v. T.L.O.• In 1980, a teacher at Piscataway High School in

Middlesex County, New Jersey, found T.L.O. and another girl smoking in a restroom—a place that was by school rule a nonsmoking area. – The two girls were taken to the principal's office where T.L.O.'s

companion admitted that she had been smoking in the restroom.

– T.L.O. denied smoking there. She denied that she smoked at all. – An assistant vice-principal demanded to see T.L.O.'s purse.

• Searching through it he found a pack of cigarettes. He also found rolling papers, a pipe, marijuana, a large wad of dollar bills, and two letters that indicated that T.L.O. was involved in marijuana dealing at the high school.

• T.L.O. was taken to the police station where she confessed that she had sold marijuana at the school.

New Jersey v. T.L.O.

• A juvenile court sentenced her to a year's probation. – The State Supreme Court overturned the

decision, stating that T.L.O.'s 4th Amendment rights had been violated.

– The State of New Jersey asked that the Supreme Court hear its appeal

Supreme Court:• The presence of rolling papers in the

purse gave rise to a reasonable suspicion in the principal's mind that T.L.O. may have been carrying drugs, thus, justifying a more thorough search of the purse.

Students’ Rights(4) Body Searches, Pat-downs, Pocket

SearchesCourts have ruled:

Pat-downs – minimally intrusive

Strip Searches – highly intrusive (require probable cause) *see homework case

Pocket Searches –*are lawful if school officials have reasonable suspicion or reasonable cause to believe that the student has contraband

Students’ Rights(4) Body Searches, Pat-downs, Pocket

SearchesLet’s take a look: What Do You think homework

By an 8-1 vote, the justices upheld a ruling that the school and its officials violated the U.S. constitutional right that protects against unreasonable search and seizure.

Students’ Rights(5) Canine Searches

Non-intrusive since there is no expectation of privacy in the air around objects-only explore what is within “plain smell”

Students’ Rights(6) Student Drug Testing

Vernonia School District v. Acton

In the mid-1980s, officials in the school district in Vernonia, noticed a rise in drug use among the students

*Disciplinary problems arose in frequency and severity. *Student athletes were "the leaders of the drug culture" prevalent among Vernonia's students* School officials were concerned that drug use increases the risk of

sports-related injury.

All student athletes would be required to submit to the program as a condition of participating in athletics.

*All athletes were tested at the beginning of the season*10% of the athletes were selected randomly every week to provide a urine sample.

The samples were collected in a manner that preserved the students' modesty. If a student's sample tested positive, the student was given the option of

either undergoing counseling and submitting to six weekly drug tests or sitting out the remainder of that season as well as the following season.

James Acton, a student, was denied participation in his school's football program when he and his parents refused to consent to the testing

Students’ Rights

(6) Student Drug Testing con’t

Vernonia School District v. Acton

Supreme Court – agreedStudent athletes – leaders of drug cultureSince voluntary – themselves under

ruleTest’s purpose – NOT PUNISH

BUT REMEDIATION and HEALTH

Board of Education v. EarlsHave right to impose random drug testing as a condition for students to participate in virtually any extracurricular activity

Students’ Rights

(7) Car SearchesT.L.O. applied to Student vehicles searches by school officials parked on school property

Any Questions?

5th Amendment – what do people think of?

Reward Challenge

What does it all mean?

• Issues of privacy, search and seizures, and due process rights can be highly charged and emotional

COLLISION between Need to keep students safe and give

them due process and

the desire to let them learn and grow will continue