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FLETC: Exam 2-Enforcement Law (Chief Counsel) > 4th Amendment > Flashcards

4th Amendment Flashcards

An in-depth look at the 4th Amendment and how it relates to Law Enforcement.

You may prefer our related Brainscape-certified flashcards:
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1
Q

AMB 5000 CH3

What does the 4th Amendment of the U.S. Constitution state?

A

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. And no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be search, and the persons or things to be seized.”

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2
Q

AMB 5000 CH3

Define a “Seizure of Property”.

A

Government interference with possessory right or interest in property.

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3
Q

AMB 5000 CH3

Define a “Seizure of Person”.

A

Government interference with a person’s freedom of movement when a reasonable person would not feel free to leave or terminate the encounter.

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4
Q

AMB 5000 CH3

How will a “Seizure of Person” be judged in the courts?

A
  1. ) The judge will focus on what was done and not what the agent was thinking when it was done because a “reasonable person” cannot read minds.
  2. ) The Supreme Court has said: “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. (Terry vs. Ohio 1986)
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5
Q

AMB 5000 CH3

What are the three main types of seizures?

A
  1. ) Temporary zero suspicion seizures
  2. ) Temporary Reasonable Suspicion seizures
  3. ) Probable Cause seizures
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6
Q

AMB 5000 CH3

Describe the harmful effects that will occur if an “illegal arrest” is performed.

A
  1. ) Evidence discovered during an illegal seizure will be suppressed (Exclusionary Rule & The Fruit of the Poison Tree Doctrine)
  2. ) Arresting Agent is likely to be sued in his personal capacity for violating the individual’s constitutional rights.
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7
Q

AMB 5000 CH3

What is the “Benchmark Test” officers use to determine if the arrest was lawful?

A

Was the seizure more intrusive than necessary

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8
Q

AMB 5000 CH3

What are some examples of the factors the courts use to determine if the arrest was lawful?

A
  1. ) Was the distance the suspect was moved more than necessary for the investigative detention.
  2. ) Was the length of the detention longer than necessary.
    * *The Courts have refused to establish a fixed time limit. Just make sure you are doing your DUE DILIGENCE to resolve your suspicion of criminal activity.*
  3. ) The words, tone of voice, general demeanor of the agent
  4. ) What the suspect was told about the detention 5.) Was the suspect searched.
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9
Q

AMB 5000 CH3

Explain what “Exceeding Scope” means.

A

If a law enforcement officer (LEO) exceeds the type of seizure supported by the level of suspicion, then, the courts will consider the seizure to be an illegal arrest.

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10
Q

AMB 5000 CH3

Explain what “Use of Force” means.

A
  1. ) Physical force or yielding to the display of force, such as unholstering a weapon
  2. ) Must be both Reasonable and Necessary
  3. ) Use of Force on any level is considered a “Seizure”
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11
Q

AMB 5000 CH3

With regards to “Use of Force” what is the definition of “Necessary”?

A

The agent cannot accomplish his lawful duties without employing some force.

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12
Q

AMB 5000 CH3

With regards to “Use of Force” what is the definition of “Reasonable”?

A

There are valid reasons for using the particular degree of force employed.

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13
Q

AMB 5000 CH3

What is the definition of “Deadly Force”?

A

Force that is likely to cause death or serious physical injury.

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14
Q

AMB 5000 CH3

When is “Use of Deadly Force” authorized?

A

when the agent has reasonable belief (Probable Cause) that an imminent threat of death or serious physical injury exists, and there is Probable Cause to believe deadly force is necessary to eliminate that treaty.

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15
Q

AMB 5000 CH 3

You should never discharge your firearm solely to…

A

stop a fleeing felon (Tennessee vs. Garner)

*Must have reasons other than fleeing to justify shooting a fleeing felon.

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16
Q

AMB 5000 CH3

Pursuant to CBP Policy, with regards to the “Use of Deadly Force” and vehicles, you should…

A

Never use deadly force solely to disable a vehicle or to fire a “Warning Shot”.

*However, you are allowed to shoot the driver/occupants of a vehicle if it is necessary.

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17
Q

AMB 5000 CH3

Pursuant to CBP Policy, with regards to “Disabling/Warning Shots” agents are…

A

never permitted to use Disabling or Warning shots except in specific air and marine situations that are outlined in the “Use of Force Policy Handbook”, “Marine Operations Handbook”, “Aviation Operations Handbook”, and the “Airborne Disabling Policy”.

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18
Q

AMB 5000 CH3

Current CBP / OAM Policy states that the use of “Warning Shots” is allowed for Marine Agents provided that…

A
  1. ) Authorized Marine Agents use warning shots as a signal to stop a vessel.
  2. ) Warning shots shall be fired only in Open Water with Clear Range.
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19
Q

AMB 5000 CH3

Current CBP/ OAM Policy, and the Small Boat Interdiction Program (SBIP), allows Marine Agents to use “Disabling Fire” on non-compliant vessels provided that…

A
  1. ) The non-compliant vessel is first encountered inside 12 nautical miles (Customs Waters) from the demarcation line of the U.S.
  2. ) SBIP may be used up to the territorial waters of foreign nation. (hard border)
  3. ) SBIP is authorized in Soft Borders
    * *Soft Border: is an area that has layer such as Customs Waters, Contiguous Zone, International Waters, etc.*
  4. ) If the shooter is absolutely certain that the munitions fired wil not land or cross into another sovereign territory.
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20
Q

AMB 5000 CH3

With regards to Intentional vessel ramming and the use of deadly force, explain what the current CBP / OAM policy states.

A

The threat of an intentional vessel ramming may justify the use of deadly force if:

1.) the subject vessel poses an imminent threat of death or serious physical injury to CBP personnel

2.) The CBP Vessel cannot prevent the ramming by maneuvering clear.

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21
Q

AMB 5000 CH3

Current CBP / OAM Policy states that the use of “Warning Shots” is allowed for Aviation Agents provided that…

A

It is use only as a signal to an aircraft to change course and follow directions to leave airspace.

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22
Q

AMB 5000 CH3

Describe what the current CBP / OAM Policy states about “Air Disabling Fire”.

A
  1. ) Authorized Aviation Agents may use waring disabling fire to stop a vessel.
  2. ) Air Disabling Fire (ADF) shall not be used to disable fleeing vessels whose sole violation appears to be the smuggling of illegal aliens.
    * *ALWAYS CHECK YOUR CURRENT POLICY*
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23
Q

AMB 5000 CH3

With regards to the 4th Amendment, define “Search”.

A
  1. ) A Search occurs when the government intrudes into a Reasonable Expectation of Privacy (REP). (Katz vs. US)
  2. ) Or when a government trespass is conjoined with an attempt to find something or to obtain information. (U.S. vs. Jones)
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24
Q

AMB 5000 CH3

Define “Reasonable Expectation of Privacy”.

A

its a subjective (“personal”) expectation of privacy that is objectively reasonable (supported by the existing circumstances).

*Simple Version: the suspect considers item/area of the search to be private, and society agrees.

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25
Q

AMB 5000 CH3

In regards to Government Intrusion into a “Reasonable Expectation of Privacy”, what are the three types of intrusion (searches)?

A
  1. ) Physical Intrusion: boarding vessels or touching a person’s body.
  2. ) Visual Intrusion: x-raying a vessel hull or using thermal imager to detect heat behind a wall of a building.
  3. ) Auditory Intrusion: intercepting a “private” communication with a device. *Listening to radio traffic is not considered a search unless the traffic is encrypted or encoded.
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26
Q

AMB 5000 CH3

In regards to Government Intrusion into a “Reasonable Expectation of Privacy”, explain the difference between a Government Search vs. a Private Search.

A
  1. ) Government Search must be conducted by a government officer or a private person acting at the direction of a government officer.
  2. ) Private Search must be conducted by a private person, it was his own idea, and he did it without any government assistance.
    * *The 4th Amendment does not govern the activities of private parties. Thus the courts will not exclude evidence obtained by a private person acting purely on his own initiative.*
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27
Q

AMB 5000 CH3

Name the areas where there is No Reasonable Expectation of Privacy (No REP).

A
  1. ) Open View
  2. ) Open Fields
  3. ) Overhead Conversation
  4. ) Voluntarily Abandoned Property
  5. ) Canine Sniff
  6. ) Travel Documents
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28
Q

AMB 5000 CH3

INA 287(a)(3) limits your authority to do what?

A

Limits the LEO from entering private agricultural land solely to interview agricultural workers regarding their immigration status.

*Officer needs another reason to be on the land. (Ex. Border Patrol, to arrest a feeling felon, to respond to a bona fide emergency, etc.)

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29
Q

AMB 5000 CH3

Name the areas where Reasonable Expectation of Privacy (REP) exists.

A
  1. ) Person’s Body
  2. ) A dwelling house and its curtilage
  3. ) Some buildings and Commercial structures
  4. ) Containers including luggage
  5. ) Some Vessels, Aircraft, and other Conveyances
  6. ) Private communications.
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30
Q

AMB 5000 CH3

What is important about “Title III of the Omnibus Crime Control and Safe Streets Act of 1968?

A
  1. ) It is the primary federal “wiretap” law.
  2. ) Title III violations are subject to a $10,000.00 civil fine per violation, as well as criminal prosecution.
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31
Q

AMB 5000 CH3

To proceed with a “Title III Wire Tap” what must be done?

A

Must obtain a court order or consent of at least one party to the conversation.

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32
Q

AMB 5000 CH3

What are the “Levels of Suspicion”?

A
  1. ) Zero suspicion
  2. ) Some/Mere suspicion
  3. ) Reasonable Suspicion
  4. ) Probable Cause
  5. ) Reasonable Certainty
  6. ) Beyond a reasonable doubt
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33
Q

AMB 5000 CH3

Define “Some/Mere Suspicion”.

A

You have a “hunch” about something.

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34
Q

AMB 5000 CH3

Define “Reasonable Suspicion”.

A

Specific articulable facts exist, and the officer suspects that a person MIGHT BE engaged in crime.

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35
Q

AMB 5000 CH3

Define “Probable Cause”.

A

A collection of facts and circumstance that leads the officer to believe that a person has committed a crime.

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36
Q

AMB 5000 CH3

Define “Reasonable Certainty”.

A

A firm belief or firm conviction that a person has committed a crime.

37
Q

AMB 5000 CH3

Define “Beyond a Reasonable Doubt”.

A

Is proof so convincing that a juror would be willing to rely and act on it without hesitation in the most important of affairs.

38
Q

AMB 5000 CH3

What actions can you take if you have only Zero Suspicion?

A
  1. ) Pilot/Vessel Document Check
  2. ) Consent Search
  3. ) Inventory
  4. ) Routine SIA
39
Q

AMB 5000 CH3

What actions can you take if you have Zero Suspicion + administrative authority?

A
  1. ) Border Search/Detention
  2. ) Vessel Docs Check
  3. ) Pilot Cert Check
  4. ) BP Check Point primary
40
Q

AMB 5000 CH3

What actions can you take if you have Reasonable Suspicion?

A
  1. ) Investigative Detention
  2. ) Frisk
  3. ) Protective Sweep
  4. ) Non-routine SIA (strip search)
  5. ) Border search involving partial body search
  6. ) Body Cavity Search
  7. ) Medical Search
  8. ) BP Check Point secondary for criminal matters
41
Q

AMB 5000 CH3

What actions can you take if you have Probable Cause?

A
  1. ) Arrest or seizure of property
  2. ) Plain View seizure
  3. ) Mobile Conveyance search
  4. ) Hot Pursuit
  5. ) Now or Never search
  6. ) Emergency search
42
Q

AMB 5000 CH3

What is an example of Reasonable Certainty?

A
  1. ) Border Nexus occurred
  2. ) No material change.
43
Q

AMB 5000 CH3

What is an example of Beyond a Reasonable Doubt?

A

1.) Criminal Conviction.

44
Q

AMB 5000 CH3

What are “Articulable Facts”?

A

Facts that are used to establish a level of suspicion.

*Articulable Facts can be thought of as the building blocks of certain levels of suspicion.

45
Q

AMB 5000 CH3

Before engaging in any enforcement action, an agent should always ask?

A
  1. ) Is this a 4th Amend search/seizure?
  2. ) Is a warrant or exemption needed?
  3. ) What level of suspicion is needed?
  4. ) Any Statutory or Policy restrictions?
46
Q

AMB 5000 CH3

How do you obtain a warrant?

A
  1. ) Fill out the application & affidavit
  2. ) AUSA must review application
  3. ) Agent is placed under oath and swears to the accuracy of the information.
  4. ) US Magistrate Judge issues the warrant.
47
Q

AMB 5000 CH3

How do you execute a search warrant?

A
  1. ) Staleness: Must be served within 14 days
  2. ) Daytime Execution: must be executed 6am-10pm unless judge allows otherwise.
  3. ) Knock & Announce: you must first “knock & announce” your presence and intent to serve the warrant.
  4. ) Reasonable: Agents executing a search warrant must act in a reasonable fashion.
  5. ) Frisking a person present: A person who is present wen a warrant is executed may be detained and frisked if the agent has reasonable suspicion to believe the person is armed and dangerous.
  6. ) Return: Following execution of the warrant, the agent must return to the Magistrate Judge a completed Receipt/Inventory of items seized.
48
Q

AMB 5000 CH3

Can you seize items that are not listed in the warrant but are found during the execution of the warrant?

A

Yes, because its a Plain View seizure.

49
Q

AMB 5000 CH3

Warranted Searches and Seizures are presumed to be…

A

Reasonable

50
Q

AMB 5000 CH3

Warrantless Searches and Seizures are presumed to be…

A

Un-reasonable.

*The burden is on the government to demonstrate that the search or seizure was reasonable pursuant to one of the exceptions to the warrant requirement.

51
Q

AMB 5000 CH3

What are the exceptions to the warrant requirements?

A
  1. ) Arrest in a public location
  2. ) Plain View seizure
  3. ) Mobile Conveyance search
  4. ) Exigent Circumstances
    * -Hot pursuit*
    * -Now or Never*
    * -Emergency*
52
Q

AMB 5000 CH3

Explain what an “Arrest in a Public Location” is.

A

Public location is any place to which the agent has lawful access.

*Note: 19 USC 1589a’s arrest authority is broader than 8 USC 1357 arrest authority.

53
Q

AMB 5000 CH3

Explain what a “Mobile Conveyance Search” is.

A

The conveyance is readily mobile (car, boat, plane, train, etc.) and there is probable cause to believe the contraband or evidence of crime is located inside the conveyance.

*All containers (locked or unlocked) or places within the conveyance that might contain the property may be opened without a warrant. (U.S. vs. Ross 1982)

54
Q

AMB 5000 CH3

Explain what the “Hot Pursuit” exception is.

A

Any evidence that is gathered due to an Agent chasing a fleeing felon into a REP-protected location is fully admissible in court.

55
Q

AMB 5000 CH3

Explain what the “Now or Never” exception is.

A

Agent enters a REP-protected location to seize evidence to prevent its destruction or removal before a warrant can be obtained.

56
Q

AMB 5000 CH3

Explain what the “Emergency” exception is.

A

Agent enters a REP-protected location to prevent loss of life or destruction of property.

*Once the emergency is resolved, agent must exit absent a warrant or some other exception to the 4th Amendment’s warrant or probable cause requirements.

57
Q

AMB 500 CH3

What are the exceptions to the Probable Cause requirement?

A
  1. ) Search Incident to Arrest (SIA)
  2. ) Consent Search
  3. ) Investigative Detention (Terry Stop)
  4. ) Frisk
  5. ) Protective Sweep
  6. ) Inventory Searches
  7. ) Regulatory Seizures & Searches
  8. ) Border Patrol Immigration Check Points
  9. ) Border Detention & Searches
58
Q

AMB 5000 CH3

Explain what a “Search Incident to Arrest” is.

A

It allows agents to search an arrestee for WEAPONS, EVIDENCE, or MEANS OF ESCAPE.

*With Probable Cause there is no additional suspicion required to search the exterior of arrestee’s clothing, objects carried by arrestee, or area within arrestee’s immediate control (includes any LOCKED or UNLOCKED containers located therein)

59
Q

AMB 5000 CH3

During a Search Incident to Arrest can a Law Enforcement Agent search the passenger compartment of a vehicle?

A

YES: Arizona vs. Gant held that law enforcement officers may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if:

  1. ) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search
  2. ) or it is reasonable to believe that vehicle contains evidence of the offense of arrest.
60
Q

AMB 5000 CH3

During a Search Incident to Arrest can a Law Enforcement Officer search spaces immediately adjoining the place of arrest?

A

YES: but…

  1. ) only those areas from which an attack could be immediately launched.
  2. ) and only for PEOPLE. (Not for weapons or evidence).
    * *The Supreme Court has ruled that “as a precautionary matter and without reasonable suspicion,” you may look in “closets and other places immediately adjoining the place of the arrest from which an attack could be immediately launched.” (Maryland vs. Buie 1990)*
61
Q

AMB 5000 CH3

During a Search Incident to Arrest can a Law Enforcement Officer perform a strip search?

A

YES: with reasonable suspicion that weapons or evidence are hidden underneath the suspect’s clothes.

*Example: “I reached under his shirt because I felt a knife located there when I patted him down.”

62
Q

AMB 5000 CH3

What is the trend in regards to call logs and text messages of a cell phone with search incidents to arrest?

A

Possibly considering the review of the call logs and text messages as part of the search incident to arrest.

*CHECK LOCAL COUNSEL FOR THE LAW IN YOUR CIRCUIT.

63
Q

AMB 5000 CH3

What are you not allowed to do during a search incident to arrest in regards to the arrestee roaming around?

A
  1. ) You cannot allow an arrestee freedom to roam and then justify the search of every area into which he moves as incident to his arrest.
  2. ) However, if the arrestee request permission to move about to gather items and permission is granted, an agent is authorized to accompany the arrestee from place to place and anything in Plain View is lawful.
64
Q

AMB 5000 CH3

Explain what a “Consent Search” is.

A

It is a search that must be voluntary under the totality of the circumstances and must be given by someone with either actual authority or apparent authority and is limited to the scope of the consent.

65
Q

AMB 5000 CH3

During a Consent Search can an officer obtain consent by using a trick?

A

YES: however, it must not be involved in Official Misrepresentation.

*ENTRY by TRICK: Consent obtained by deception or trick will be valid unless the deception involves official misrepresentation. “Official Misrepresentation” occurs when a government official, know to be such by the consenting party, misrepresents his status or purpose or other material aspects of his reason for gaining entry. Example: Police officer posing as a gas company worker asking to enter a building to check a potential hazardous gas leak. (would be considered official misrepresentation.)

66
Q

AMB 5000 CH3

During a Consent Search is a Law Enforcement Officer required to tell the suspect they have the right to refuse the search?

A

No

67
Q

AMB 5000 CH3

For consent search purposes what are the different types of authority to give consent?

A
  1. ) Actual Authority
  2. ) Apparent Authority
  3. ) Third-party Consent
68
Q

AMB 5000 CH3

Explain what Actual Authority means in regard to consent searches.

A

Consent to search may be given by anyone with a reasonable expectation of privacy in the object or place to be searched, weather such person is the owner or a third party with equal right of access to the property or item.

69
Q

AMB 5000 CH3

Explain what Apparent Authority means in regard to consent searches.

A

A person who reasonably appear to have joint use or access to the property to be searched, but in fact does not, may still consent to the search and it will be considered lawful. (Illinois vs. Rodriguez 1990)

70
Q

AMB 5000 CH3

Explain what Third-party consent means in regard to consent searches.

A

is based on the recognition that a person who grants another person access to his property assumes the risk that the other person will give the government consent to search the property in their absence.

Third-parties:

1.) Co-occupants

2.) Host-House Guest

3.) Hotel Guest

4.) Landlord-Tenant

5.) Employer-Employee

6.) Bailor-Bailee

71
Q

AMB 5000 CH3

What is the one limitation to the Third-party Search consent?

A

When a person reserves a closet, desk, room, or any other object or area for his exclusive use, others (even parents, spouses, or cohabitants) cannot consent to a search of that object or area.

72
Q

AMB 5000 CH3

Can a co-occupant grant consent to search their roommate’s room?

A

NO: the co-occupant can only grant consent for their area and any area they “SHARE” joint control with their roommate.

73
Q

AMB 5000 CH3 Can a host grant consent to search the area occupied by a guest?

A

YES: but this does not include the guest’s personal items.

74
Q

AMB 5000 CH3 Can a hotel clerk grant consent to search a room that is registered to a hotel guest?

A

NO *only when the term of occupancy ends can the hotel management grant consent to search the room.

75
Q

AMB 5000 CH3 Can a Landlord grant consent to search the premises of his tenant?

A

NO *Unless the tenant has abandoned the property or has been evicted.

76
Q

AMB 5000 CH3 Can an Employer grant consent to search an employee’s personal belongings or area assigned to the employee for his exclusive use?

A

NO

77
Q

AMB 5000 CH3 Can a Bailor grant consent to search the personal belonging of his Bailee?

A

YES: A person with custody of personal property of another person can grant consent to search the items as long as been given sufficient control of the property to establish joint access or use.

78
Q

AMB 5000 CH3 What is the scope of a consent search?

A

It is at the discretion of the consenting party, and the search may not exceed any time or location limits imposed by the consenting party.

79
Q

AMB 5000 CH3 If the consenting party revokes the consent to search what actions to the LEO’s take?

A

The LEO’s have to stop the search immediately.

80
Q

AMB 5000 CH3 Explain what a Investigative Detention (Terry Stop) is.

A

Requires: Reasonable Suspicion A brief detention, using due diligence, to resolve in the least intrusive means possible your reasonable suspicion that the person was involved in criminal activity.

81
Q

AMB 5000 CH3 Explain what a Frisk is.

A

Requires: Reasonable Suspicion Its a Patdown of the exterior clothing and search of unlocked containers in the immediate vicinity, of the suspect, to locate weapons.

82
Q

AMB 5000 CH3 Can a Law Enforcement Officer “Frisk” an automobile or Container (handbag, backpack, etc.)

A

YES: If the officer conducting the investigative detention believes the suspect is dangerous and that a container carried by the suspect or located in the passenger compartment of the automobile may conceal a weapon. *However, if it can be determined that the container in question does not hold any weapons by feeling its outer surface then the officer CANNOT open the container.

83
Q

AMB 5000 CH3 What is a Protective Sweep?

A

Requires: Reasonable Suspicion If the officer believes there are hidden threats while he is lawfully present, then he can search only those areas where the hidden threat could be.

84
Q

AMB 5000 CH3 What are some examples of Regulatory Seizures and Searches?

A

1.) Vessel Doc’s Check 2.) Pilot’s Cert. Check

85
Q

AMB 5000 CH3 What level of suspicion do you need to conduct a Border Patrol Immigration Checkpoint?

A

Zero *Also, you don’t need any level of suspicion to order the driver and passengers out of the vehicle for the duration of the search.

86
Q

AMB 5000 CH3 What are some of the consequences for Exceeding your Constitutional Powers & Limitations as a LEO?

A

1.) Criminal Goes Free 2.) Suppression of Evidence -Exclusionary Rule -Fruit of the Poisonous Tree Rule

87
Q

AMB 5000 CH3 Explain the “Exclusionary Rule”.

A

If a law enforcement officer violates a person’s Constitutional rights, then any evidence that the law enforcement officer obtains as a result of the violation could be suppressed (excluded) from the trial.

88
Q

AMB 5000 CH3 Explain the “Fruit of the Poisonous Tree Rule”

A

Illegally seized evidence cannot be used as the means of obtaining still more evidence.

FLETC: Exam 2-Enforcement Law (Chief Counsel) (11 decks)

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