(10) Criminal Procedure: Search/Seizure & Lawful Arrests Flashcards
Overall Rule to start every essay:
4th Amendment Right
The 4th Amendment protects people from unreasonable government searches and seizures without a warrant issued on probable cause describing the place to be searched and the person or place to be seized, where a person has a right to privacy.
The 4th Amendment only protects people from government action or private parties acting as an instrument or agent of the government.
To challenege a search or seizure a party must have standing which means they have?
To challenge a search or seizure the party must have standing which means they must have a reasonable expectation of privacy regarding the item or place searched.
(Courts hold people have a reasonable expectation of privacy in that of which they own or possess)
Do overnight guests have standing when challenging warrantless searches in a home they are staying in?
YES, an overnight guest has standing when challenging a warrantless search in a home they are staying in.
What areas do people have a right to privacy in?
A dwelling or the area immediately surrounding the dwelling (curtilage) is covered by the right to privacy.
How do the courts determine if an area is protected by a persons right to privacy?
In determining whether an area is protected this 4 factor test applies: (a) the proximity of the area to the home; (b) whether the area is included within an enclosure surrounding the home; (c) the nature of the uses to which the area is put; AND (d) the steps taken by the resident to protect the area from observation by passersby.
Is there a reasonable right to privacy for smells emitting from an object?
NO
Requirements for a Valid Search Warrant
Search
A warrant must be (1) issued by a detached and neutral magistrate upon a finding of (2) probable cause supported by an oath and (3) describes the places to be searched and items to be seized.
Can a search warrant be attacked for lacking probable cause?
Search
A search warrant that is valid on its face cannot be attacked for lacking probable cause unless the D can establish by a preponderance of the evidence that (1) the affidavit contained false statements that were made knowingly intentionally or with reckless disregard for the truth AND (2) the false statements were necessary to the finding of probable cause.
Can a search warrant be issues to search the premises of a person who is not suspected of a crime?
Search
YES
Rule & Exceptions:
Knock and Announce Rule
Search
Most states mandate that a police officer announce their purpose before entering.
The exception is if entry is being made under (a) exigent circumstances or (b) there is reasonable belief of danger to the officer or (c) destruction of evidence.
May an officer detain a person during a search?
Search
YES, an officer may detain a person within the vicinity for a reasonable purpose during the search.
Exceptions to the Valid Search Warrant Requirement:
When is a warrantless search reasonable?
Search
A warrantless search is unreasonable unless the search satisfies one of the 7 exceptions: (1) Search Incident to a lawful arrest (2) Exigent circumstances (3) Stop and Frisk (4) Plain View Doctrine (5) Checkpoints (6) Consent (7) Administrative & inventory Searches (8) Automobile Exception
Plain View
Search - Warrantless Search Exception
The police may seize evidence without a warrant if: (1) it is observed in plain view (with any of the 5 senses); (2) from a place the officer is lawfully permitted to be; AND (3) probable cause exists to believe that the items are evidence of a crime or contraband.
*The officer must also have lawful access to the item for instance viewing thru a window is insufficient if the officer doesn’t have lawful access to the inside of the house.
Exigent Circumstances
Search - Warrantless Search Exception
Exigent circumstances exist if: (a) the evidence would dissipate or disappear in the time it would take to obtain a warrant; (b) its necessary to prevent the imminent destruction of evidence; (c) the police are in hot pursuit of a felon and the evidence is in plain view; OR (d) the emergency aid exception applies – need to render emergency assistance to an injured person or to protect a person from imminent injury.
General Rule
Search Incident Arrest
Search - Warrantless Search Exception
An officer who makes a lawful arrest may conduct a contemporaneous warrantless search of the suspects person and the area within the suspects immediate control.
There is a HOME RULE and a CAR RULE
