Challenge to Facially Valid Warrant
D must established byPoE
- affidavit contained false statements that were made by affiant know, int, or reck
- false statements were necessary to PC.
Terry Stop - “plain feel”
may seize an object only if with open hand can tell that the object has the physical char of a weapon, contraband, or evidence of crime
what are Defenses to Unlawful Arrest
D may use nondeadly force to resist an unlawful arrest, extends to others acting on behalf of D.
when does D have standing?
reasonable expectation of privacy (REP) in the place searche
-exists if D had POSESSORY right in plae or item
is there REP in open fields? luggage? false friend?
no
what are the req for valid warrant?
- (1) issued by neutral, detached magistrate,
2. based on probable cause, and
described with particularity the place to be searched or item/person to be seized
what constitutes PC for warrant?
what are possible bases?
A fair probability that would warrant a reasonable person to conclude that evidence of a crime can be found at a particular place or that a particular Δ committed a crime
what is the scope of a warrant? does the warrant cover persons?
easonably necessary to discover items. Must be executed w/o unreasonable delay while PC exists
no unless PC to arrest, PC that item is on person (RS)
is it sufficient to refer to the contraband as “other fruits, instrumentalities, or evidence of crime at this time unknown”?
yes
what is the knock and announce rule? when can it be not followed?
olice must give notice and wait a reasonable time before entering to execute W, except when there is RS that announcing will lead to destruction of evidence, endanger officers, or be futile
what are the warrant exceptions?
auto plain view exigent circum stop and frisk admin consent sita
what is auto exception?
are there other instances of auto exceptions?
Any vehicle/car capable of moving is covered (incl. a mobile home not fixed to the ground)
1. Requirements:
□ To stop car, needs RS of violation of law (can ripen to PC) OR
® pretext ok
□ PC to believe crim evidence/contraband is in car
2. Scope:
a. If PC to believe criminal evidence is in a car, can search w/o W: the whole car, closed containers (size limited to where evidence could be), and its contents, including passenger luggage, where contraband could be
b. If PC to believe evidence is in a container in the car, search of car limited to that container (and where that container could be); once package is found, search is limited to the package
c. If PC to believe automobile itself is contraband, can seize it without W
having driver and passengers step out is also ok
what is the plain view exception?
a. PC to believe evidence is associated with crime (can’t move item for a better view)
b. Police officer (PO) is lawfully present and positioned +
“immediately apparent” that item is subject to seizure +
what is exigent cirucmstnace exception?
- Requirements:
a. PC to believe evidence likely to disappear before W can be obtained (e.g., blood alc. conc., scraping under fingernail).
2. Scope:
a. Warrantless search must end roughly when exigency ends
3. Specific Type:
Hot pursuit of fleeing felon suspects (where speed and safety are essential): PO may make warrantless search/seizure related to pursuit, or enter anyone’s home w/o W. Evidence in plain view will be admissible
what is stop and frisk?
- Requirement:
a. RS of criminal activity.
a) Reasonable suspicion (RS) = specific and articulable facts (unusual conduct) + rational inferences from the facts (criminal activity may be afoot (stop); suspect may be armed or dangerous (frisk))
2. Scope:
a. Stop: brief detention for investigative purpose, no longer than necessary to verify suspicion.
a) If PC arises during stop, it could become an arrest.
b. Frisk: pat down for weapons only if RS that suspect has weapon
a) Plain feel: During patdown, PO may seize items reasonably believed to be weapon or contraband (admissible as evidence)
3. Specific Types:
Auto Terry Stop (RS): Per RS, may frisk driver/passenger or search car limited to where weapon may be
what is admin search?
- Requirements:
a. Not traditional crime control.
b. Check general “reasonableness” of justification and scope of search
2. Specific Types
a. Public schools: Search by public school officials (e.g., search bag to investigate violation of school rules) must be reasonable.
i. Search is reasonable if moderate chance of finding evidence + procedure reasonably related to objective of search + search not excessively intrusive
b. Businesses subject to heavy regulation (e.g., junkyard) may get warrantless, unannounced searches
c. Checkpoints: Suspicionless stopping and searching OK if done routinely, not randomly, at fixed pt for reason beyond just general crime prevention and in a non-discr manner
d. Borders: No W or PC needed for border searches. No 4A rights at border. May stop vehicle w/ RS
Other examples: gov’t workplaces if reasonable scope for work-related need, arrestee belongings
what is sita?
- Requirements:
a. Arrest must be lawful (PC exists).
2. Scope:
a. May only include arrestee’s person and the area “within his immediate control” (where he might obtain weapon or destroy evidence)
b. contemporaneous in time & place with arrest
a) “Contemporaneous” not necessarily “simultaneous” (e.g., can search car after securing arrestee)
3. Specific Types:
a. Protective sweep (at home when executing arrest warrant): If police has RS of danger/attack from others in the home, may sweep spaces where another person might be hiding (e.g., not drawers)
b. Auto SITA itself: 2 ways – unsecured arrestee or reasonable belief of criminal evidence in vehicle
a) PO can search inside vehicle (excl. trunk unless PC) incident to occupant’s arrest only when arrestee is unsecured and within reaching distance of a compartment while arrested
i) not if arrestee is no longer within reaching distance
b) Search of whole vehicle incident to a lawful arrest is allowed if it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle
c. Auto Inventory search: Police may conduct routine search of arrestee’s belongings or impounded car, including inside containers
govt agency can pretend to be someone else
