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Bar Crim Pro > 1) 4A > Flashcards

1) 4A Flashcards

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1
Q

rship btwn state laws and 4, 5, 6 ams

A

1) rights incorporated to states through 14A DPC
2) states can provide additional protections
3) but a state statute that violates fed const = invalid

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2
Q

crim pro qs: approach

A

1) was there gvt action?
2) did it trigger const right? (was it a search? was it an interrogation? etc)
3) if yes, violate right?
4) is your D entitled to exclusion?

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3
Q

gvt action: rule

A

4A applies only to gvt, not private conduct

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4
Q

silver platter doctrine

A

if private party acting on his own gets evidence that gvt later wants to use in a prosecution, does not trigger 4A!

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5
Q

silver platter doctrine: exception

A

if privat party acted at direction of gvt (or pursuant to official policy) then yes 4A triggered

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6
Q

seizure / 4A

A

IF there is a sz, 4A is triggered

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7
Q

sz of a person: what’s a sz?

A

(gvt action) +

1) RP in his position would not feel free to leave or otherwise terminate the police encounter

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8
Q

sz of a person: test

A

1) police use physical force (even a little) OR

2) police make show of authority followed by submission

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9
Q

sz of a person: test for naturally confined location

A

would RP feel free to terminate police encounter?

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10
Q

sz / arrest

A

arrest = maximum sz

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11
Q

casual encounter vs sz vs arrest

A

purpose + duration

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12
Q

sz: Terry stop

A

brief investigatory sz for sole purpose of investigating a RS that crime is about to or recently has occurred

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13
Q

sz: Terry stop: permissible duration

A

time necessary to confirm or deny the suspicion

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14
Q

RS, suspicion confirmed

A

suspicion blossoms into PC (and next step could be arrest)

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15
Q

RS, suspicion denied

A

suspicion dissipates (and sz must terminate)

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16
Q

sz of property: def

A

police do meaningful interference w possessory interest

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17
Q

sz: placing a beeper

A

NOT a sz if does not interfere w owner’s use of the property

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18
Q

search: rule

A

if it’s a search, it triggers reasonableness reqs of 4A

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19
Q

search: def

A

1) any gvt investigatory trespass against person, papers, or effects OR
2) intrusion into REP (look into or enter)

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20
Q

home: scope

A

includes the curtilage

doe snot include the open fields

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21
Q

investigatory trespass: exs

A

bringing drug dog onto the curtilage

physically touching car to place gps tracking device

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22
Q

REP: test

A

BOTH:

1) D manifests subjective expectation of privacy (ex shielding) AND
2) expectation is objectively reasonable bc it’s an expectation society is willing to recognize (inc dn expose it to the public)

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23
Q

REP: none if

A

knowingly exposed to the public

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24
Q

things that are not a search bc exposed to the public

A

1) commonly available equipment
2) animals (drug dogs)
to enhance police’s 5 senses – does not make it a search as long as unenhanced observation would not have been a search

(device not in general public use doesn’t count)

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25
Q

no REP in:

A

1) handwriting exemplar
2) voice exemplar
3) bank records
4) pen register
5) email headers (sent thru ISP)
6) false friend convos (recorded w consent of other party)
7) open fields (even if police trespass)
8) naked eye aerial observation of private property
9) aerial photography
10) discarded property (garbage)

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26
Q

IF it’s a search or sz, then

A

must be reasonable, in order to comply w 4A

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27
Q

warrant/reasonableness

A

if police have a warrant, creates presumption of reasonableness

if no warrant, presumptively unreasoanble + gvt BOP that it fell w/in exception

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28
Q

ways to challenge warrant

A

1) not based on valid PC
2) magistrate not neutral or detached
3) warrant failed to describe w particulrity what to search or sz

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29
Q

warrant/exclusionary rule

A

excluding evidence requires that police acted UNREASONABLY when relied on warrant (not enough that warrant later found invalid)

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30
Q

warrant PC: def

A

affidavit to magistrate must provide relatve facts leading to fair probability (more probable than not) that person committed crime OR that evidence will be found in this location

AND
evidence provided to magistrate must not be stale

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31
Q

warrant execution: method

A

rarely, method may make it unreasonable if shocks the conscience (bullet removal)

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32
Q

warrant execution: knock + announce

A

police normally must knock + announce their ID before entering home to execute warrant

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33
Q

warrant execution: knock + announce: exceptions

A

knock + announce not required if police have RS to believe that knocking will endanger officers or lead to destruction of evidence, or flight of suspect

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34
Q

warrant execution/exclusionary rule

A

violating knock and announce rule DOES NOT trigger exclusionary rule, even tho is 4A violation

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35
Q

PC: needed for

A

full-scale intrusions:
search to find evidence
arrest

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36
Q

RS: needed for

A

brief investigatory sz

protective cursory search

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37
Q

PC: def

A

fair probability: facts + circs that would lead RP to conclude that indiv in question has committed a crime (for an arrest) or that specific items related to crim actiivty can be found at the location (for search)

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38
Q

PC = objective standard, (result)

A

focused on facts and circs

result: even if police has improper subjective motive, still assess reasonableness objectively – if there was PC, it’s reasonable

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39
Q

PC + anonymous tip: test

A

totality of circs: factors:

1) veracity of informant (track record)
2) basis of knowledge
3) police investigation that corroborates tip

reliability higher if identifies self

not enough if just a prediction any neighbor could make

all these together –> predictive insider information

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40
Q

RS: def

A

belief based on specific articulable facts, beyond a hund, so RPP would think suspect has or is about to engage in illegal activity

hunch + verifiable objective fact = enough

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41
Q

terry stop: def

A

brief investigatory sz – need RS

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42
Q

terry frisk: def

A

cursory protective search – need RS

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43
Q

arrest: standard

A

always need PC

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44
Q

arrest: warrant?

A

no, as long as has PC

and arrest is in public (need warrant for arrest in the home)

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45
Q

arrest / warrant / home: exception

A

exigent circs

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46
Q

exigent circs (for warrantless arrest in the home): test

A

1) offense is more serious than minor misdemanor
2) officer did not unlawfully create the exigency

and ONE OF THESE:

a) arrest attempt outside is thwarted bc suspect retreats into home OR
b) insufficient time to get a warrant bc delay would allow suspect to evade arrest or destroy evidence OR
c) arresting officer is in hot pusuit AND has PC for avlid arrest

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47
Q

Terry stop: standard

A

need RS that crime is in progress or has just been committed by suspect, to confirm or rule out suspicion

48
Q

RS / flight

A

headlong flight from plice, in a high crime neighborhood, = RS

49
Q

tips: RS

A

informant tip + police investigaiton that corroborates accuracy of informant’s predictions = RS

50
Q

tips: RS vs PC vs nothing

A

PC: predictive inside information!

RS: verified prediction (dnn insider access)

no prediction = no RS

51
Q

Terry stop: scope

A

1) time required for officer, acting in due diligence, to confirm or deny the suspicion
2) ok ask name + ID as long as has immediate relation to purpose of stop

52
Q

RS: objective standard

A

just like PC – officer’s improper subjective basis not a problem as lon gas there was objectively reasonable belief that suspect was engaged in or about to engage in crim activity

53
Q

sz of property: standard

A

warrant presumptively, but not always required

54
Q

sz of property: warrant exception

A

plain view

55
Q

sz: plain view: elements

A

1) police are in lawful vantage point to observe the item (w/in the scope of their orig search etc)
2) (contraband) – incriminating nature of item is immediately apparent (gives immediate PC to sz) +
3) officer has lawful access to point of sz (dnn to do extra unauthorized search ot get there)

56
Q

sz: plain view: not required

A

inadvertence – so ok if officers anticipated they might find something + then they didn’t list it – if it comes into plain view, the sz is reasonable

57
Q

plain view req is for

A

warrantless SZ, not warrantless search (bc if it’s in plain view you don’t need a search to begin w!)

58
Q

4A searches w warrant: scope (general)

A

premises described in the warrant only

(exception): indep justification

59
Q

searches w/ warrant scope: exception

A

plain view doctrine (as long as comes into pv w/in scope of warrant)

60
Q

4A searches w warrant: scope: location owned by nonsuspect

A

ok

61
Q

4A searches w warrant: scope: ppl

A

includes right to detain ppl in the home during the search

but NOT the right to search the ppl (unless listed in warrant)

62
Q

4A searches: rule

A

warrantless search is unreasonable unless meets an exception

63
Q

4A searches: warrant exceptions

A

1) SITLA
2) auto
3) special needs (checkpoints)
4) consent
5) hot pursuit
6) exigent circs
7) Terry search (frisk)
8) administrative search

64
Q

SITLA: rule

A

warrantless search of arrestee + area w/in his immediate control is automatically permitted following lawful arrest

65
Q

SITLA “lawful arrest”: lawful

A

based on pC

officer's subjective motives irrelevant
reasonable mistake (like arresting wrong suspect) --> sitla still reasonable
66
Q

SITLA “lawful arrest”: arrest

A

have to actually arrest – no searches incident to citation!

67
Q

SITLA: timing

A

must be contemporaneous w arrest (rarely can precede slightly as long as arrest inevitable)

68
Q

SITLA: automatic

A

no requirement to justify each one re safety/evidence

69
Q

Terry sweep: def

A

if police have RS that others in home may put them at risk, then

may conduct cursory protective sweep of the house to rule out the risk. Scope limited to where person could hide.

70
Q

SITLA automobile rule

A

police can automatically search person of arrestee but how much they can search car depends on if arrestee has genuine access to interior after arrested

71
Q

SITLA: automobile: yes genuine access

A

then, can search interior of the car + all containers

rare

72
Q

SITLA: automobile: no genuine access

A

can only search interior of car if police have RS that evidence re crime of arrest is in the car

73
Q

automobile exception: rule

A

police can search automobile (or other self-propelled conveyance) w/o a warrant as long as have PC

74
Q

automobile exception: justifications

A

reduced expectation of privacy (gvt reg)

+ inherent mobility

75
Q

automobile exception: scope

A

whole car + all containers w/in

THAT YOU HAVE PC FOR (consider size of the thing you’re looking for, etc)

ok bring it to the impound lot (dnn get warrant, even if have time)

76
Q

automobile exception: exception

A

immobile vehicle (incapable or parked in area showing it’s not) then, automobile exception dn apply

narrow

77
Q

automboile exception: how it tends to go

A

you need PC for it (so traffic violation not enough) but commonly after traffic violation + stop, PC develops so then can search

78
Q

special needs docrine: rule

A

ok suspicionless search at checkpoint if checkpoint is for special needs

79
Q

special needs: “special needs” def

A

primary purpose must be protect public from immediate danger

CANT BE GENERAL CRIME CONTROL or dy of evidence!

80
Q

special needs: “special needs” exs

A

sobriety
search for recently escaped inmate or suspect
counter-terrorism

81
Q

special needs: manner/scope of search

A

1) based on fixed formula so indiv officers can’t select the suspects
2) narrowly tailored in scope to address the specific threat
3) conducted in location/manner that minimizes citizen anxiety

82
Q

special needs: sz at checkpoint

A

ok seize antything that comes into plain view while searching w/in scope (even if contraband unrelated to safety issue)

(and of course can develop pc etc)

83
Q

special needs: checkpoint must be fixed

A

not roving (so no random checks of license/reg w/o RS wrongdoing)

84
Q

special needs: exception

A

border searches

85
Q

border searches; rule

A

ok stop vehicles at permenant checkpoints at or near the border or do routine searches of ppl/property, dnn suspicion or cause

if “nonroutine,” need RS. (unusually intrusive: body cavity search or permanent destruction of property)

86
Q

consent: exception to

A

1) warrant req AND

2) PC req (so police dnn RS ni PC to ask for consent)

87
Q

consent / sz

A

any evidence observed in plain view w/in proper scope of consent search may be seized

88
Q

consent: rule

A

consent must be VOLUNTARY, based on totality of circs

89
Q

consent: voluntariness: exs of not voluntary (and a but)

A

fake warrant
fraudulently
under duress
police threaten to do something they DN have authority to do

BUT police not required to inform suspect that she can decline consent

90
Q

consent: implied

A

(administrative searches) – traveling by plane, regulated business

91
Q

consent: scope

A

1) request (“search your car?”)

2) item indicates looking for (could it fit there?)

92
Q

consent: withdrawing

A

can refuse, withdraw, or limit scope of consent. BUT must clearly express these limits BEFORE the officer finds the evidence

93
Q

consent/prior sz

A

if consent happens AFTER unlawful sz, unlawful sz is poison tree that taints the consent!

94
Q

consent: 3rd parties: rule

A

any person who has joint control or use of shared premises may consent to a valid search, and any evidence seized in plain view may be used against the other occupants

95
Q

consent: 3rd parties: scope

A

only to common areas – not private areas where D has exclusive control

96
Q

consent: 3rd parties: who can give consent

A

if person giving consent has actual authority OR

reasonable officer would believe person has the authority

97
Q

consent: 3rd parties: who can’t give consent

A

LL
motel owner
employer (for ee’s private storage area)

98
Q

consent: objecting co-tenants

A

CAN’T reasonably rely on 3rd party consent if other resident is present and objecting. BUT if suspect not present and objecting, co-T’s consent valid against him

99
Q

hot pursuit: rule

A

warrantless search for a suspect is lawful when police are in actual hot pursuit of the suspect to apprehend him

100
Q

hot pursuit: scope

A

ok enter a home, even if not the suspect’s home

101
Q

hot pursuit: sz

A

ok arrest suspect w/o warrant (even if it’s in his house)

ok seize any contraband they observe in plain view pursuant to hot pursuit entry

102
Q

exigent circs: rule + kinds

A

police can search w/o warrant when situation indicates that waiting to get a warrant will result in imminent:

1) destruction of evidence OR
2) escape of the accused, OR
3) risk to police or others in the area

103
Q

exigent circs: rship to hot pursuit

A

if in a hot pursuit, creates exigency that justifies warrantless entry

104
Q

exigency: evidence n or on suspect’s body:

A

ok search + sz w/o a warrant
IF: there is PC to beleive that nature of evidence makes it easily destroyed/likely to disappear before can get warrant, and
2) procedure for seizing evidence is reasonable, does not shock conscience
(more likely reasonable if only wa to preserve)

105
Q

exigency: crime scene searches

A

exigency justifies warrantless crime scene search to seek other Vs or remaining killer or violent felon

BUT NOT a general search at the crime scene

106
Q

Terry frisk: def

A

cursory protective search for weapons that create imminent danger to officer/others nearby

107
Q

Terry frisk: justification

A

need RS THAT armed + dangerous (NOT to search for evidence)

108
Q

Terry frisk: rship to Terry stop

A

just bc police conduct Terry stop, does NOT automatically mean Terry frisk is reasonable (for Terry stop justification = crime is afoot)

109
Q

Terry frisk: scope

A

cursory inspection of outer clothing to confirm or deny that armed (pat-down)

110
Q

Terry frisk: plain touch rule

A

if frisk results in officer feeling something he knows immediately is weapon or other contraband, ok seize w/o a warrant (plain touch). BUT if just suspects contraband and has ts to manipulate it to make sure, NO pc to sz (manipulation exceeds scope of Terry frisk)

111
Q

Terry frisk: cars

A

ok brief cursory look in areas of car where weapon could be readily there IF have RS to assume person stopped will have immediate access to weapon

then PV applies

112
Q

administrative searches: rule

A

no PC or warrant needed – just RS

113
Q

border searches: cars

A

no suspicion needed unless doing some disassembly, then RS is enough

114
Q

border searches: bowels

A

if refuses to submit to x-ray and RS (that ingested narcotics) for detention, can hold until bowel mvt

115
Q

administrative searches: def

A

agency compliance inspection (admin regs, health and safety codes) – non crim purpose. usu need administrative warrant (exception: airports)

Bar Crim Pro (8 decks)

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