Search and Seizure

MBEMax wiki article — paired with the Constitutional Law / Criminal Procedure question set on mbemax.com.

One-line summary

A Fourth Amendment challenge asks (1) was it a government search or seizure of a place or thing where the defendant has a reasonable expectation of privacy or possessory interest, and (2) was it reasonable — usually meaning supported by a warrant based on probable cause, or within a recognized exception.

Mnemonic

G-R-W-E — Government action, Reasonable expectation of privacy, Warrant (or exception), Exclusionary remedy.

Think of a detective's badge — "I'm G.R.W.E." — before she searches, she mentally checks each letter.

The rule (plain-language)

The Fourth Amendment protects people from unreasonable searches and seizures by the government. If a person has a legitimate expectation of privacy (Katz) or a possessory interest (Jones trespass), government intrusion is a search or seizure. A warrant based on probable cause, particularly describing the place and things, is presumptively required; several exceptions permit warrantless action; suppression is the remedy for violations by government, subject to good-faith and attenuation doctrines.

Elements you must hit

1. Standing — defendant must have a personal Fourth Amendment interest (reasonable expectation of privacy in the place searched OR possessory interest in item seized). No vicarious standing.
2. Government action — purely private searches do not trigger the Fourth Amendment.
3. Search or seizure — government conduct invading privacy or possession.
4. Probable cause + warrant — unless an exception applies.
5. Particularity — warrant must describe with reasonable specificity.
6. Reasonableness of execution — knock-and-announce, scope limited to what the warrant authorizes or plain view.

Warrantless exceptions (memorize the set)

• Exigent circumstances — hot pursuit, imminent destruction of evidence, emergency aid.
• Search incident to lawful arrest (SILA) — person + area of immediate control. Chimel for arrestees; Gant limits vehicle SILA to (a) unsecured arrestee within reach or (b) reasonable belief evidence of arrest crime is in vehicle.
• Automobile exception — probable cause to believe vehicle contains contraband → warrantless search of anywhere contraband could be (including containers).
• Plain view — lawfully present, incriminating nature immediately apparent, lawful access.
• Consent — voluntary by someone with actual or apparent authority. Co-occupant present and objecting vetoes (Randolph), but officer removing objector doesn't preserve the objection (Fernandez).
• Stop and frisk (Terry) — reasonable suspicion to stop; separate reasonable suspicion of armed and dangerous to frisk; pat-down only.
• Special needs / administrative — school searches, border, checkpoints, probation/parole, administrative inspections of closely regulated industries.
• Inventory — routine catalog of impounded vehicle or booking inventory of arrestee.

NCBE loves to test

• Standing trap. A defendant has no standing to challenge a search of someone else's property where he has no reasonable expectation of privacy (a passenger with no ownership interest, an overnight guest vs. brief visitor — Minnesota v. Olson vs. Carter).
• Curtilage vs. open fields. Curtilage = home protection. Driveways visible from public may be open. Florida v. Jardines — dog sniff on front porch = search.
• Digital privacy (Carpenter, Riley). Cell-site location information seized from carrier = search (Carpenter). Cellphones seized incident to arrest cannot be searched without warrant (Riley).
• GPS and trespass. Attaching a GPS tracker to a car = search (Jones, trespass theory).
• Exclusionary rule exceptions. Good-faith reliance on warrant, attenuation, inevitable discovery, independent source, knock-and-announce violations do NOT trigger exclusion (Hudson).
• Consent scope. Consent to search vehicle includes closed containers reasonably within scope of stated object (Jimeno).

Fast hypos

Hypo 1. Officers smell marijuana in a stopped car and search the trunk, finding cocaine in a passenger's backpack. Passenger moves to suppress. Automobile exception satisfied; passenger has standing to challenge seizure of her own backpack but contents admissible because PC extended to whole vehicle.

Hypo 2. Police attach a GPS tracker to a suspect's car parked in a public lot and monitor for 28 days. No warrant. Search under Jones (trespass) and Carpenter (duration) — suppression unless exception.

Hypo 3. Officer stops D for a traffic violation, arrests him, handcuffs him, and secures him in the patrol car. Officer then searches D's trunk. Not a valid SILA under Gant — arrestee secured, and no reasonable belief of evidence of the traffic violation.

Hypo 4. Defendant's roommate opens the door and lets officers in. Defendant, standing in the living room, immediately says, "You can't come in — get out." Co-tenant objection vetoes consent (Randolph).

Case anchors

• Katz v. United States, 389 U.S. 347 (1967) — reasonable expectation of privacy test.
• United States v. Jones, 565 U.S. 400 (2012) — trespass-to-chattel theory.
• Carpenter v. United States, 585 U.S. 296 (2018) — CSLI requires warrant.
• Riley v. California, 573 U.S. 373 (2014) — cellphone search-incident-to-arrest requires warrant.
• Arizona v. Gant, 556 U.S. 332 (2009) — limits on vehicle SILA.
• Illinois v. Gates, 462 U.S. 213 (1983) — totality-of-circumstances probable cause.
• Terry v. Ohio, 392 U.S. 1 (1968) — stop and frisk.
• Florida v. Jardines, 569 U.S. 1 (2013) — dog sniff on curtilage is a search.

See also

• Fourth Amendment
• Miranda
• Exclusionary rule
• Terry stops

Sources

U.S. Const. amend. IV; Katz v. United States, 389 U.S. 347 (1967); United States v. Jones, 565 U.S. 400 (2012); Carpenter v. United States, 585 U.S. 296 (2018); Riley v. California, 573 U.S. 373 (2014); Arizona v. Gant, 556 U.S. 332 (2009); Illinois v. Gates, 462 U.S. 213 (1983); Terry v. Ohio, 392 U.S. 1 (1968); Florida v. Jardines, 569 U.S. 1 (2013); Georgia v. Randolph, 547 U.S. 103 (2006); Hudson v. Michigan, 547 U.S. 586 (2006).