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Criminal Procedure
University of Toledo School of Law
Hamilton, Melissa

4TH AMENDMENT

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 and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

STAGE 1 – IS THERE A 4TH AMENDMENT RIGHT?

1. Persons and actions covered
a. “people” à citizens & those who have developed a sufficient relationship with the US
b. standing à may only be asserted to those subject to an unreasonable search or seizure
c. government action à only applied to actions by the government or private persons acting as an agent of the government

2. Persons
a. their body
b. exterior of body (pat downs)
c. interior (urine test for drugs or alcohol)
d. oral communication (electronic surveillance)

3. Houses
a. residence including temporary residence (hotel) and place of businesses
b. attached (garages)
c. not attached (sheds)
d. curtilage (land surrounding)
(1) open fields à NO

4. Papers & Effects
a. Papers – personal items (letters and diaries) & impersonal business records
b. Effects – clothing, furnishings, automobiles, luggage, etc

I. WAS THERE GOVERNMENTAL CONDUCT? à No = No 4th Am. Right

a. GOVERNEMENTAL ACTION REQUIRED
i. By government
ii. Or by persons acting in the capacity of an agent of the government
1. Determined by degree of government involvement in the situation and totality of circumstances
iii. 4th Amendment is not limited to Police conduct, also over the conduct of:
1. public EE
2. Firefighters
3. housing inspectors
iv. Note:
1. Administrative searches by non-government actor are controlled by different standards.

II. DOES THE DEFENDANT HAVE STANDING? – No = No 4th Am. Right
*** Will preclude suppression of evidence ***

a. Rakas: Legitimate Expectation

– more likely to have REP
b. Duration?
i. Overnight – REP
ii. Short period of time no indication that guest was to stay overnight – Need more evidence for REP
c. Pervious contacts – Family, frequent visitor, etc? more likely to have REP.

iii. Guest: Tenant is Absent:
1. A non-resident may have standing to contest a search if she was the sole occupant of the premises with the permission of the resident, and has some significant connections to the premises.
2. Over Night Guest still OK with permission and dominion and control

c. Traffic Stops:
i. Individual Owning/Renting the Car – Standing to challenge a search of any area he had REP
ii. Car with Passangers: Guest has Standing to challenge the forcible stop of a car, because that act constitutes a seizure.