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Charu: Crim Pro > 4A Searches and Seizures > Flashcards

4A Searches and Seizures Flashcards

1
Q

What is a government seizure of a person?

A

Considering totality of circumstances, reasonable person would feel that he was not free to decline the officer’s requests or otherwise terminate the encounter.

4A requires:

a) physical force or
b) show of authority followed by submission.

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2
Q

Rule re: pretextual stops

A

If officer has PC to believe a traffic law has been violated, officer may stop the suspect’s car, even if ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop

Also: can let narcotics dog sniff car as long as it doesn’t go on longer than what’s necessary for a normal investigatory stop

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3
Q

When is warrantless search of gov employee’s desk and file cabinets permissible under 4A?

A
  1. Reasonable in scope
  2. Justified at its inception by a nonivestigatory, work-related need or reasonable suspicion of work-related misconduct
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4
Q

Examples of “special needs” which justify gov-required drug testing without a warrant, probable cause, or even individualized suspicion

A
  1. Requiring gov employees involved in accidents to be tested for drugs after the accidents
  2. Requiring persons seeking Customs positions connected to drug interdiction to be tested for drugs
  3. Requiring public school students who participate in any extracurricular activities to submit to random drug tests
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5
Q

List examples of things held out to the public, which have no expectation of privacy.

A

Paint on the outside of a car

Handwriting

Smell of one’s luggage or car

Account records held by bank

Magazines offered for sale

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6
Q

6 Exceptions to Warrant Requirement

A
  1. Search incident to lawful arrest
  2. Automobile exception
  3. Plain view
  4. Consent
  5. Stop and frisk
  6. Hot pursuit, exigent circumstances, evanescent evidence, other emergencies
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7
Q

When are warantless searches of a parolee and his home valid without reasonable suspicion?

A

State statute conditions parole on agreement to submit to searches at any time, with or without a search warrant or probable cause

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8
Q

What is an arrest?

A

Police take a person into custody against her will for purposes of criminal prosecution or interrogation

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9
Q

What are the requirements for a non-emergency arrest of an individual in her own home?

A
  1. Warrant
  2. Reason to believe suspect is within the home

If no warrant, must show sufficient exigent circumstances to overcome presumption of unreasonableness

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10
Q

What is required to satisfy “reasonable suspicion”?

A

More than a vague suspicion, judged under totality of the circumstances

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11
Q

What happens if the police improperly arrest a person?

A

They may detain him if they have PC to do so, and the invalid arrest is not a defense to the offense charged.

However, can’t use any evidence that is a fruit of the unlawful arrest at trial (exclusionary rule).

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12
Q

When is a search conducted by public school officials reasonable?

A
  1. It offers a moderate chance of finding evidence of wrongdoing
  2. Measures adopted to carry out search are reasonably related to the objectives of the search
  3. Search is not excessively intrusive in light of age and sex of student and nature of infraction
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13
Q

What is generally required for police officers to stop a car?

A

This is a 4A seizure. They need at least a reasonable suspicion to believe that a law has been violated.

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14
Q

What is required for an investigatory detention?

A

Reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime

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15
Q

What are the 4A implications of seizure of a person for a grand jury appearance?

A

This is NOT within 4A protection, so a subpoena for testimony, handwriting or voice exemplars, etc. does not require PC and is not subject to 4A reasonableness requirements

BUT, it might be found unreasonable if extremely broad and sweeping or used for harassment purposes

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16
Q

Requirements for a valid warrant authorizing a wiretap

A
  1. PC to believe that a specific crime has been or is being committed
  2. Suspected persons whose conversatons are to be overheard must be named
  3. Warrant must describe with particularity the conversations that can be overheard
  4. Wiretap must be limited to short period of time (but can obtain extensions)
  5. Provisions must be made for termination of wiretap when desired info has been obtained
  6. Return must be made to the court, showing what converations have been intercepted
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17
Q

What happens to evidence seized pursuant to a warrant that was later found to not be supported by PC?

A

Evidence obtained by police in reasonable reliance on a facially valid warrant may be used in a prosecution

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18
Q

When may the police arrest a person in a public place without a warrant?

A

1. Probable cause to believe the person has committed a felony

or

2. Misdemeanor committed in officer’s presence (any sensory awareness)

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19
Q

Requirements and rules for warrant exception:

Automobile exception

A
  1. probable cause to believe vehicle contains contrabrand or fruits, instrumentalities, or evidence of a crime
  2. w/ full PC to search a vehicle, may search entire vehicle and all containers within vehicle that might contain the object for which they are searching
  3. w/ PC to search only a container recently placed inside (e.g. a briefcase), must limit search to that container
  4. contemporaneousness not required (can tow and search later)
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20
Q

7 rules & requirements for valid execution of a warrant

A
  1. By police
  2. Without unreasonable delay
  3. Announcement + reasonable time for admittance before using force to enter (with exceptions)
  4. Scope limited to what’s reasonably necessary
  5. May seize contraband or fruits or instrumentalities of crime, whether or not specified in warrant
  6. May ONLY search persons found on premises not named in warrant if they have PC to arrest her (may search her incident to the arrest) OR may frisk if reason to believe armed and dangerous
  7. Limited authority to detain occupants of premises while search is being conducted – limited to persons in immediate vicinity during execution
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21
Q

Requirements and rules for warrant exception:

Consent

A
  1. Requires voluntary consent

Knowledge of right to withhold is a factor to consider, not a prerequisite

  1. Police must reasonably believe that the person consenting has apparent equal right to use or occupy property, even if evidence found may be used against other owners/occupants

Exception: where other party is present and objects

  1. Search must be limited to scope of the consent (where reasonable person under circumstances would believe it extends)
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22
Q

What happens if a police officer’s mistake of law gives rise to reasonable suspicion for a seizure?

A

Valid if reasonable

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23
Q

Requirements and rules for warrant exception:

Exigent circumstances – destruction of evidence

A
  1. Applies even if exigency arose because officers knocked
  2. Must have reason to believe evidence is being destroyed
  3. Officers must not have created exigency thru an actual or threatened 4A violation
24
Q

When does a co-conspirator have standing to challenge the seizure of damaging evidence?

A

She must show that her OWN expectation of privacy was violated

25
Q

When may police use deadly force to apprehend a person?

A

When it is reasonable to do so under the circumstances

26
Q

What happens if an officer develops PC during an investigatory stop?

A

It becomes an arrest

27
Q

When may roving patrol inside US border stop car for questioning of occupants?

A

When officer reasonably believes car may contain illegal aliens – Mexican ancestry alone insufficient

28
Q

Where must a police officer’s reasonable suspicion arise from?

A

Personal knowledge not needed; can be based on a flyer, police bulletin, or report from informant

29
Q

Requirements and rules for warrant exception:

Stop and frisk

A
  1. Any constitutionaly valid arrest made pursuant to probable cause
  2. Limited to “wingspan” (person and areas into which he might reach to obtain weapons or destroy evidence) OR a protective sweep
  3. For “technological searches,” gov interests must outweigh person’s privacy interests
  4. Contemporaneous in time and place with arrest
  5. Before incarceration or impoundment, may search arrestee’s personal belongings
30
Q

Requirements for ∆ to invalidate a search warrant that is sufficient to establish PC on its face (going “behind the face” of the affidavit)

A
  1. False statement was incuded in affidavit by affiant (the officer applying for the warrant)
  2. Affiant intentionally or recklessly included that false statement

AND

  1. False statement was material to the finding of PC
31
Q

When can police conduct a frisk in an investigatory detention?

A

Reasonable suspicion that the detainee is armed and dangerous

32
Q

May police officers set up a roadblock for purposes of seeking incriminating information about the drivers stopped?

A

No, but they can do it to seek incriminating info about others

33
Q

Requirements and rules for warrant exception:

Hot pursuit

A
  1. Must be in hot pursuit of a fleeing felon
  2. Scope as broad as may be reasonably necessary to prevent suspect from resisting or escaping
  3. If search based on PC that starts in public place, may pursue suspect into private dwellings
34
Q

4A protections at border

A

Lower expectation or privacy, so NO probable cause, warrant, or reasonable suspicion required

35
Q

When can officers set up roadblocks to stop cars without individualized suspicion that the driver has violated some law?

A

Cars must be stopped on basis of some neutral, articulable standard (e.g. every other car)

AND

Must be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility (e.g. drunk driving or transporting illegal aliens across a border)

36
Q

Requirements and rules for warrant exception:

Emergency aid

A

Applies to emergencies that threaten health or safety if not immediately acted upon

e.g. officers see someone injured or threatened with injury

37
Q

When may roving patrol inside US border conduct a warrantless search?

A

Only when the requirements of one of the exceptions to the warrant requirement are met

38
Q

What is the probable cause requirement for arrest?

A

At time of arrest, officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant an RPP to believe suspect has committed or is committing a crime for which arrest is authorized by law

39
Q

When may police detain the occupants of a permises during a search?

A

Pursuant to execution of valid warrant to search for contraband

40
Q

Requirements and rules for warrant exception:

Evanescent evidence

A

Applies when evidence is likely to disappear before warrant can be obtained

Reasonableness judged by totality of circumstances

41
Q

Exceptions to announcement requirement for execution of warrant

A
  1. If officers have reasonable fear that evidence will be destroyed after they announce themselves, a limited 15-20 second delay before using force is reasonable
  2. “No knock” entry possible if officer has reasonable suspicion, based on facts, that knocking and announcing would be dangerous or futile or that it would inhibit the investigation (judged case-by-case, no blanket exception for drugs)
42
Q

When are dog sniffs at a traffic stop lawful?

A
  1. police officers lawfully stopped the car
  2. do not extend stop beyond time necessary to issue ticket and conduct ordinary inquiries incident to such a stop
  3. if it does extend an otherwise-completed stop, reasonable suspicion is rquired to complete a dog sniff

Note: dog “alert” to presence of drugs can be basis of PC to search the car

43
Q

Requirements for warrant exception:

Plain view

A

Requirements:

  1. Police legitimately on premises
  2. Discover evidence, fruits, instrumenalities of crime or contraband
  3. See such evidence in plain view
  4. Have PC to believe that the item is evidence, contrabrand, fruit, or instrumentality of crime
44
Q

What does a warrant based on info obtained from informers require?

A

Based on totality of the circumstances

Enough info to allow magistrate to make common sense evaluation of PC – no particular facts actually required

45
Q

What constitutes a stop?

A

A reasonable person would believe she is not free to decline the officer’s requests or otherwise terminate the encounter

Not enough to approach w/o detaining

46
Q

What is required for reasonable suspicion based on informant’s tips?

A

Indicia of reliability sufficient to make officer’s suspicion reasonable

i.e. predictive information

47
Q

“Open Fields” Doctrine

A

Areas outside the “curtilage” (dwelling house and outbuildings) are subject to police entry and search – they are “held out to the public” and unprotected by 4A

Court considers proximity to dwelling, steps used to protect from public view, etc.

48
Q

How long can an investigatory stop last?

A

As long as it takes to confirm or dispel suspicions

Police must ask in diligent and reasonable manner

49
Q

What happens if an officer has a dog sniff around the entry of a home?

A

It constitutes a “search” and therefore requires a valid warrant or a warrant exception

50
Q

Requirements and rules for warrant exception:

Stop and frisk

A

Standards:

  1. To STOP: articulable and reasonable suspicion of criminal activity
  2. To FRISK: officer reasonably believes person may be armed and presently dangerous

For a valid stop of a VEHICLE:

  1. May order driver out of car w/o suspicion of criminal activity
  2. May search passenger compartment even if officer hasn’t arrested occupant, provided search is limited to those areas in which a weapon may be placed or hidden and officer possesses reasonable belief occupant is dangerous
51
Q

Requirements for a valid warrant

A
  1. Issued by neutral and detached magistrate
  2. Based on PC established from facts submitted to magistrate by gov agent upon oath or affirmation
  3. Particularly describe place to be searched and items to be seized
52
Q

What is required for a warrant to search a premises of a person not suspected of a crime?

A

PC to believe evidence of someone else’s guilt (or something else subject to seizure) will be found

53
Q

Effect of automobile stop on passengers of vehicle

A

Constitutes a seizure of passengers as well

54
Q

What are the 2 tests to determine if an individual’s 4th amendment rights have been implicated?

A
  1. Search or seizure by gov agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy
  2. Physical intrusion by gov into a constitutionally protected area to obtain information
55
Q

When does a person have a reasonable expectation of privacy?

A

Based on the totality of circumstances, considering factors like ownership of the place and location of the item seized.

Always, when:

  1. she owned or had right to possession of the place searched
  2. place searched was in fact her home, whether or not she had a right to possession of it; OR
  3. she was an overnight guest of the owner of the place searched
56
Q

Standard for administrative inspections and searches

A

Warrant based on general and neutral enforcement plan which guards against selective enforcement

Charu: Crim Pro (15 decks)

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