3. Search and Seizure - Issue Three Flashcards
The eight exceptions to the warrant requirement
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”
Three types of Exigent Circumstances
- Evanescent Evidence
- “Hot Pursuit” of a Fleeing Felon
- “Emergency Aid” exception
Evanescent Evidence:
Evidence that would dissipate or disappear in the time it would take to get a warrant.
“Hot Pursuit” of a Fleeing Felon:
Hot pursuit allows police officers to enter the ___________ of a suspect or a third party to search for a fleeing felon.
“Emergency Aid” exception:
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.
Requirements for a Search Incident to Arrest
- Arrest (also called a “custodial” arrest) must be lawful.
- Timing: The search must be contemporaneous in time and place with the arrest.
- 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.
The search of cell phones
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.
Search of DNA evidence
Police may lawfully take a DNA sample by swabbing the cheek of an individual arrested for a serious offense.
NY rule for the search of containers during a search incident to arrest
To search containers within the wingspan, an officer must suspect that the arrestee is armed.
Permissible scope for automobiles searched incident to a custodial arrest
Interior cabin, including closed containers , but not the trunk.
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)?
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.
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)
Once the occupant is out of the car, police cannot search containers inside the vehicle to look for weapons or evidence of crime.
Standard for consent to search
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.
Scope of consent
Consent to search extends to all areas for which a reasonable officer would believe permission to search was granted.
“Apparent” authority
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.
Rules for shared premises
(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.
Standard for the automobile exception
Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle.
Where can police officers search under the automobile exception?
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.
The three requirements for seizure of an item in plain view:
- lawful access to the place from which the item can be plainly seen;
- lawful access to the item itself; and
- the criminality of the item must be immediately apparent.
Inventory searches are constitutional, provided:
(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.
What is a Terry Stop?
It is a brief detention or “seizure” for the purpose of investigating suspicious conduct.
What are you “seized” for Fourth Amendment purposes?
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.
Police Pursuit and “Seizure”
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.
Who can challenge the legality of a traffic stop?
In a traffic stop, both the driver and the passengers are seized, such that either can challenge the legality of the stop.
What is a Terry Frisk?
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.
What can be seized during a Terry Frisk?
- If, during a Terry frisk, an officer finds something she reasonably believes to be a weapon, it can always be seized.
- If, instead, the officer finds something she recognizes as contraband without manipulating the object, she can seize it as well.
- NEW YORK: Officers can seize an item only if it reasonably appears to be a weapon.
Car “Frisks”
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.
Protective sweeps
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.
What evidentiary standard applies to Terry Stops and Frisks?
Objective reasonable suspicion, which is less than probable cause
The U.S. Supreme Court has approved warrantless, suspicionless drug tests in a variety of contexts, including:
(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.
When are school searches permissible?
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.
When are border searches permissible?
Neither citizens nor non-citizens have any Fourth Amendment rights at the border, with respect to routine searches of persons and effects.
