Step one: Government Conduct?
1. The publicly paid police, on or off duty,
2. any private party acting at the direction of public police.
a. Privately paid police do not constitute governmental conduct unless they are deputized with power to arrest.
Step 2: Reasonable expectation of privacy to have standing?
1. Automatic Privacy expectation
a. If you own the premise searched
b. If you live on the premise searched, whether you have ownership interest or not.
c. Overnight guests
2. Sometimes standing
a. You own the property seized: if you have a reasonable expectation of privacy in the item or area searched.
b. If you are a passenger in a car: Passengers in cars they don't claim to own and who don't claim to own the property taken out of the car do not have standing to object just because they were legitimately present when search took place.
3. No expectation of privacy to anything you hold out to the public everyday, including:
a. Voice
b. Handwriting
c. accounts held by a bank
d. Monitoring the location of your car on public street or in your driveway
e. anything that can be seen across open fields or by flying over public air space.
f. odors emenating
g. your garbage set out on the curb
Step 3: Did the police have a valid search warrant
1. A search warrant requires probable cause and particularity (place searched and things seized)
a. A fair probablility that contraband or evidence will be found in the area searched.
1. Can rely on hearsay
2. You can have a valid warrant base din part on an informant's tip even though that informant is annonymous.
Step 4: If the warrant is not valid, does an officer's good faith defense save the defective warrant?
1. Officer's good faith reliance on a search warrant overcomes defects with PC or Particularity requirements, unless
a. THe affidavit underlying the warrant is so lacking in PC that no reasonable officer would have relied on it.
b. So lacking in particularity that " "
c. The police officer or prosecutor lied to or misled magistrate when seeking warrant.
d. If magistrate is biased, and therefore has wholly abandoned his or her neutrality.
Step 5: If warrant is invalid and can't be saved by good faith defense, or if no warrant at all, then is there an exception to the warrant requirement?
1. Search incident to arrest
a. Arrest must be lawful.
b. Must be contemporaneous in time and place.
c. The person and areas to which he can reach either to procure a weapon or to destroy evidence (wingspan)
1. In a car includes entire interior compartment (not the trunk), but only if arresstee is unsecured and still making access to interior OR police reasonably believe that evidence of offense for which person was arrested will be found in vehicle
2. The automobile Exception
a. In order for police to search anything or anybody under auto exception, must have PC before such search. If this is the case, can search entire car. Can also open any container which could reasonably contain evidence which they have PC to search.
3. Plain view
a. Officer must be legitimately present.
4. Voluntary and intelligent consent.
a. If a police officer claims to have a warrant and doesn't, this negates consent.
b. If two people with ownership are present and one denies consent, then denial will control.
5. Stop and Frisk
a. A brief detention for the purpose of investigating suspicious conduct base don reasonable suspicion.
b. Terry frisk is a pat down of the outer clothing and body to check for weapons, and is justified by concern for officer safety.
c. Officer can pull out evidence if he reasonably believes that by plain feel that it is a weapon or contraband.
6. Hot pursuit and Evanescent evidence
a. Evidence that might dissapear if the police took the time to get a warrant
b. If police are within 15 min behind a fleeing felon, it is a valid hot pursuit.
1. If truly in hot pursuit, can enter anyone's home without a warrant and any evidence in plain view will be admissible.
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