3. Search and Seizure - Issue Three

Question 1

The eight exceptions to the warrant requirement

Answer 1

E xigent Circumstances
S earch Incident to Arrest
C onsent
A utomobile
P lain View
I nventory
S pecial Needs
T erry “Stop and Frisk”

Question 2

Three types of Exigent Circumstances

Answer 2

1. Evanescent Evidence
2. “Hot Pursuit” of a Fleeing Felon
3. “Emergency Aid” exception

Question 3

Evanescent Evidence:

Answer 3

Evidence that would dissipate or disappear in the time it would take to get a warrant.

Question 4

“Hot Pursuit” of a Fleeing Felon:

Answer 4

Hot pursuit allows police officers to enter the ___________ of a suspect or a third party to search for a fleeing felon.

Question 5

“Emergency Aid” exception:

Answer 5

Police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury.

Question 6

Requirements for a Search Incident to Arrest

Answer 6

1. Arrest (also called a “custodial” arrest) must be lawful.
2. Timing: The search must be contemporaneous in time and place with the arrest.
3. Geographic scope: the wingspan, which includes the body, clothing, and any containers within the arrestee’s immediate control without regard to the offense for which the arrest was made.

Question 7

The search of cell phones

Answer 7

Police may not, without a warrant, search digital data on the cell phone of an arrestee; however, they may examine the cell’s physical aspects to ensure that it will not be used as a weapon.

Question 8

Search of DNA evidence

Answer 8

Police may lawfully take a DNA sample by swabbing the cheek of an individual arrested for a serious offense.

Question 9

NY rule for the search of containers during a search incident to arrest

Answer 9

To search containers within the wingspan, an officer must suspect that the arrestee is armed.

Question 10

Permissible scope for automobiles searched incident to a custodial arrest

Answer 10

Interior cabin, including closed containers , but not the trunk.

Question 11

May an officer search a car once an officer has “secured” an arrestee (by, for example, handcuffing him and placing him in the squad car)?

Answer 11

The officer can search the arrestee’s vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.

Question 12

NY rule for once an officer has “secured” an arrestee that was in a car (by, for example, handcuffing him and placing him in the squad car)

Answer 12

Once the occupant is out of the car, police cannot search containers inside the vehicle to look for weapons or evidence of crime.

Question 13

Standard for consent to search

Answer 13

Consent must be voluntary.

For consent to be valid, police officers do not need to tell someone that she has the right to refuse consent.

Question 14

Scope of consent

Answer 14

Consent to search extends to all areas for which a reasonable officer would believe permission to search was granted.

Question 15

“Apparent” authority

Answer 15

If a police officer obtains consent to search from someone who lacks “actual” authority to grant it, the consent is still valid under the Fourth Amendment, provided the officer reasonably believed that the consenting party had “actual” authority.

Question 16

Rules for shared premises

Answer 16

(1) When adults share a residence, any resident can consent to a search of common areas within it.
(2) If co-tenants who are present on the premises disagree regarding consent to search common areas, the objecting party prevails, as to areas over which they share dominion and control.

Question 17

Standard for the automobile exception

Answer 17

Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle.

Question 18

Where can police officers search under the automobile exception?

Answer 18

The entire vehicle and they may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search.

Question 19

The three requirements for seizure of an item in plain view:

Answer 19

1. lawful access to the place from which the item can be plainly seen;
2. lawful access to the item itself; and
3. the criminality of the item must be immediately apparent.

Question 20

Inventory searches are constitutional, provided:

Answer 20

(1) the regulations governing them are reasonable in scope;
(2) the search itself complies with those regulations; and
(3) the search is conducted in good faith; that is, it is motivated solely by the need to safeguard the owner’s possessions and/or to ensure officer safety.

Question 21

What is a Terry Stop?

Answer 21

It is a brief detention or “seizure” for the purpose of investigating suspicious conduct.

Question 22

What are you “seized” for Fourth Amendment purposes?

Answer 22

An individual is seized for Fourth Amendment purposes when, based on a totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer questions.

Question 23

Police Pursuit and “Seizure”

Answer 23

When being pursued by a police officer, an individual is seized only if he submits to the officer’s authority by stopping or if the officer physically restrains him.

NY: Police pursuit is a seizure in and of itself.

Question 24

Who can challenge the legality of a traffic stop?

Answer 24

In a traffic stop, both the driver and the passengers are seized, such that either can challenge the legality of the stop.

Question 25

What is a Terry Frisk?

Answer 25

It is a pat down of the body and outer clothing for weapons that is justified by an officer’s belief that a suspect is armed and dangerous.

Question 26

What can be seized during a Terry Frisk?

Answer 26

1. If, during a Terry frisk, an officer finds something she reasonably believes to be a weapon, it can always be seized.
2. If, instead, the officer finds something she recognizes as contraband without manipulating the object, she can seize it as well.
3. NEW YORK: Officers can seize an item only if it reasonably appears to be a weapon.

Question 27

Car “Frisks”

Answer 27

When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden.

Question 28

Protective sweeps

Answer 28

When making an in-home arrest, police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety.

Question 29

What evidentiary standard applies to Terry Stops and Frisks?

Answer 29

Objective reasonable suspicion, which is less than probable cause

Question 30

The U.S. Supreme Court has approved warrantless, suspicionless drug tests in a variety of contexts, including:

Answer 30

(1) Railroad employees, following an impact accident;
(2) Customs agents responsible for drug interdiction; and
(3) Public school children who participate in any extracurricular activities.

Question 31

When are school searches permissible?

Answer 31

Warrantless searches of the person and the “affects” (e.g., purses, backpacks) of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is reasonable at its inception and is not excessively intrusive, in light of the age and sex of the student and the nature of the infraction.

Question 32

When are border searches permissible?

Answer 32

Neither citizens nor non-citizens have any Fourth Amendment rights at the border, with respect to routine searches of persons and effects.