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Crim Pro > 4th Amendment > Flashcards

4th Amendment Flashcards

1
Q

4th Amendment protects people from:

A

unreasonable searches and seizures

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2
Q

An arrest may be based upon:

A

Probable Cause

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3
Q

Arrest warrants are generally not required before arresting someone in a:

A

Public Place

  • however, a non-emergency arrest of an individual in his home does require an arrest warrant
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4
Q

Station House Detention

A

The police need probable cause to arrest
you and compel you to come to the police station either for fingerprinting or interrogation

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5
Q

Investigatory Detentions are known as

A

Terry Stops

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6
Q

When can police briefly detain someone for investigatory purposes?

A

The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must have a reasonable suspicon supported by articulable facts of criminal activity

  • a hunch, even if accurate, is not enough
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7
Q

Reasonable Suspicion to do an investigatory stops hinges on:

A

The totality of the circumstances

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8
Q

Automobile Stops

A

The police may stop a car if they have at least reasonable suspicionthat the law has been violated.

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9
Q

Exception to Automobile Stops - when do the police not need reasonable suspicion?

A

Checkpoint roadblocks

  • must be nuetrally applied
  • For roadway safety(DUI checkpoints)
  • or at border
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10
Q

Traffic Stops and Police Dogs

A

During routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.

  • during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for a search
  • police (without probable cause) cannot use a drug sniffing dog directly outside the home of a suspected drug dealer
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11
Q

Search & Seizure and your model for answering any search and seizure question: In 5 Steps

A
  1. Is there government conduct?
  2. Is there a reasonable expectation of privacy? (Standing)
  3. Did the police have a valid search warrant?
  4. If the warrant is not valid, does an officer’s Good Faith defense save the defective search warrant?
  5. Exceptions to the warrant requirement?
    • If a warrant is invalid and cannot be saved by the good faith defense or if the police never had any warrant at all,then you move to last step: Exceptions to the warrant requirement:
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12
Q

Examples of government officials that could do government conduct

A
  1. publically paid police
    • on or off duty
  2. Any private individual acting at the direction
    of the public police.
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13
Q

Privately Paid Police

A

Privately paid police actions do NOT constitute
governmental conduct UNLESS they are deputized with power to arrest you

  • Examples of Privately paid police
    • (a) Store security guards
    • (b) Subdivision police;
    • (c) Campus police.
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14
Q

Automatic Categories of Standing:

A
  1. if you own the premises searched you always
    have standing to object to the search of the place
    you own.
  2. You live on the premises searched, whether
    you have ownership interest or not.
    • Example:Grandchild living at grandparents’ home.
  3. Overnight guests have standing to object
    to the legality of the search of the place they are
    staying.
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15
Q

An important “sometimes” category of standing:

A

You own the property seized

  • If you own the property seized you have standing
    only if you have a reasonable expectation of privacy
    in the item or area searched
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16
Q

The “No Standing” Categories.

A

You have NO expectation of privacy, and therefore no standing for anything that you hold out publically everyday.The following is a list of things held out to the public, the seizure of which implicates no right of privacy:

  1. the sound of your voice
  2. the style of your handwriting
  3. the paint on the outside of your car
  4. account records held by a bank
  5. Monitoring the location of your car on
    a public street or in your driveway.
    • installation of a GPS device on a
      suspect’s car constitutes a search within the 4th amendment and thus requires probable cause and a warrant
  6. Anything that can be seen across open fields (The Open Fields Doctrine)
  7. Anything that can be seen from flying over in the public airspace
  8. The odors emanating from your luggage or car.
  9. Your garbage set out on the curb for collection.
    • still have standing if set at side of house
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17
Q

Step 3: two core requirements for a facially valid search
warrant:

A
  1. probable cause
  2. particularity
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18
Q

Probable cause

A

a fair probability that contraband or evidence of a crime will be found in the area searched.

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19
Q

Particularity

A

The warrant must state with particularity the place to be searched and the things to be seized

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20
Q

Warrants and the Use of Informants

A
  • If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances
  • the informant’s credibility and basis of knowledge are all relevant factors in making this determination.
  • A valid warrant can be based in part on an
    informant’s tip even though that informant is anonymous
    • cannot be solely based on an anonymous tip
    • must be corroborated
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21
Q

“No Knock” entry:

A

permitted in the execution of search warrants if exigent circumstances exist:

  1. An officer need not “knock and announce” if
    knocking and announcing would be dangerous, futile or inhibit the investigation
  2. Biggest fear of inhibiting the investigation: Destruction of the Evidence
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22
Q

Step Four: If the warrant is not valid, does an officer’s Good Faith defense sace the defective warrant?

A

The general rule is that an officer’s good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.

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23
Q

Four exceptions to a good faith reliance on a
defective search warrant:

A
  1. The affidavit underlying that warrant is so lacking in PC that no reasonable police officer would have relied on it.
  2. The affidavit underlying that warrant is so lacking in Particularity that no reasonable police officer would have relied on it.
  3. The police officer or prosecutor lied to or mislead the magistrate when seeking the warrant
  4. If the magistrate is biased, and therefore has wholly abandoned his or her neutrality.
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24
Q

STEP FIVE: If a warrant is invalid and cannot be saved by the good faith defense or if the police never had any warrant at all, then you move to last step: Exceptions to the warrant requirement:

A
  1. Search Incident to Arrest
  2. Community Caretaker Exception
  3. The automobile exception
  4. Plain View
  5. Consent
  6. Stop & Frisk
  7. Evanescent Evidence
  8. Hot Pursuit
  9. Special Needs searches
  10. Inventory Searches
  11. Public School Searches
25
Q

Search Incident to Arrest

A
  • The arrest must be lawful. If the arrest is unlawful then the search is unlawful.
  • The arrest and search must be contemporaneous in time and place
  • Geographic scope limitation: What can be
    searched?
    • the person
    • and the areas within the person’s wingspan and reach
26
Q

Search incident to arrest & automobiles:

A

The police may search the interior of the auto incident to arrest ONLY IF:

  • The arrestee is unsecured and still may gain access to the interior of the vehicle; OR
  • The police reasonably believe that evidence of
    the offense for which the defendant was arrested may be found in the vehicle - “Gant Exception”
27
Q

Search Incident to Arrest & Cell Phones

A

police, without a warrant, may not search digital information on a cell-phone seized from an arrested individual.

28
Q

Community Caretake Exception

A
  • Most states recognize the community caretaker exception to Search Incident to Arrest, which justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public
  • it is being applied a lot to search autos w/o a warrant.
    It is sometimes called “THE EMERGENCY AID EXCEPTION” - synonymous
29
Q

Standard for the Automobile Exception:

A
  • In order for the police to search anything or anybody and fall under the automobile exception they must have Probable Cause
  • The probable cause necessary to justify the
    warrantless search of an auto under the automobile
    exception can arise after the car is stopped. BUT the probable cause must arise before anybody or anything is searched
    • anything seen in plain view of the officer is not a search
30
Q

What may police search under the automobile exception with Probable Cause?

A
  • If – BUT ONLY IF – before searching anything
    or anybody the police have probable cause then they can search the entire car - this includes the trunk
  • Moreover, if there is probable cause, the
    police may open (without a warrant) any package,
    luggage or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage or other container is owned by the passenger or the driver.
31
Q

Plain View Requirements

A
  1. To constitute a valid plain view seizure the police
    officer must be legitimately present at the location where he or she does the viewing of the item seized.
  2. It must be immedietly apparent that the item is
    contraband or a fruit of a crime.

1) Legititmately present + 2) Immedietly Apparent

32
Q

Consent

A
  1. For there to be consent, it must be voluntary
  2. Must have reasonable expecation of privacy in thing consenting to - Must have:
    1. ownership; or
    2. possessory interest in the thing to be searched
33
Q

3rd Party Consent

A

Rule: where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not controls.

  • But note: If a co-occupant who does not
    consent to a search is removed from the premices for a reason unrelatedto the refusal (e.g., a lawful arrest), the police may search upon consent of the other occupant.
34
Q

Stop & Frisk (Terry Stop) definition:

A

Brief detention for the purpose of investigating suspicious conduct

35
Q

Legal Standard to Stop & Frisk (Terry)

A
  • Reasonable Suspicion
  • If probable cause arises during an investigatory stop, the detention can become an arrest and the officer could then conduct a full search incident to that arrest.
36
Q

A Terry frisk is a:

A

pat down of the outer clothing and body to check for weapons.

  • if officer reasonably believes by the “PLAIN FEEL” that something is a weapon or contraband, then it will be admissible. Police CANNOT MANIPULATE THE CONTOURS.
37
Q

Stop & Frisk (Terry) for Automobile Stops:

A

If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may

  1. conduct a frisk of the suspected person
  2. and may search the vehicle so long as it is limited to the areas in which a weapon may be placed.
38
Q

Evanescent means:

A

Fleeting

39
Q

Evanescent Evidence is:

A
  • Evidence that might disappear quickly if the police took the time to get a warrant
  • for such evidence police do not need to obtain a warrant
    • Exception:
      • Police need to get a warrant to take a blood sample for a DUI arrest (if practicle to do so)
40
Q

Hot Pursuit Rule of Thumb:

A
  • If police arenot within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception.
  • If the police are truly in hot pursuit theycan enter anyone’s home without a warrant, and any evidence they see in plain view will be admissable
41
Q

Inventory Searches

A

Before incarceration of an arrestee, the police may search:

  1. arrestee’s personal belongings; and/or
  2. the arrestee’sentire vehicle
    • includes closed containers
42
Q

Public School Searches Rules:

A
  1. Public school children engaged in extra-curricular activities can be randomly drug tested
    • i.e. school dances
  2. Warrantless searches of public school children’s affects, such as purses and/or backpacks, is
    permissible to investigate violations of school rules.
43
Q

A school search will be held to be reasonable only if:

A
  1. it has a moderate chance of finding any evidence wrongdoing
  2. The measures adopted to carry out the search are reasonably related to the objectives of the search; and
  3. The search is not excessively intrusive
44
Q

Wiretapping & Eavesdropping

A

All wiretapping and eavesdropping requires a warrant

  • Exceptions:
    1. unrealiable ear
    2. and uninvited ear
45
Q

Unreliable Ear

A

Everybody in this society assumes the risk that the person
to whom he is speaking will either consent to the government monitoring the conversation or will be wired and therefore has no Fourth Amendment objection on the basis that it was a warrantless search.

  • this is not about phones, but about in person stuff
46
Q

Uninvited Ear

A

A speaker has no Fourth Amendment right if she makes no attempt to keep the conversation private

47
Q

Miranda Warnings:

A

a. You have a right to remain silent;
b. Anything you say can be used against you in court;
c. You have the right to an attorney; and
d. If you can’t afford an attorney, one will be appointed for you if you so desire.

  • does not need to be verbatum, just has to convey the message
48
Q
A
49
Q

Trigger for Miranda Warnings

A

Custodial Interrogations

Custody + Interrogation

50
Q

Legal Standard for Custody

A
  • You are in custody if, at the time of the interrogation, a reasonable person would not feel free to leave
    • obective standard
  • In making this determination, a court will determine
    whether the situation presents the same inherently coercive pressures as a station house questioning
  • The “not free to leave” standard covers being in a
    police car or being in jail, but you could also be in your home or in a hospital bed
51
Q

Things that are not custodial

A
  1. probation interviews
  2. and routine traffic stops
52
Q

Interrogation

A

Under the Fifth Amendment Miranda doctrine, interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect

  • more than mere police questioning
  • state which question triggered Miranda
53
Q

Spontaneous Statements

A

Miranda warnings are not required for spontaneous statements

54
Q

Miranda Waivers

A
  • waiver must be
    1. knowing and
    2. voluntary
  • courts will employ totality of the circumstances to determine
55
Q

Miranda Rights to Invoke

A
  1. Right to remain silent
  2. Right to an attorney
56
Q

Invoking the right to remain silent

A
  • must be unambiguous
  • The police may reinitiate questioning after the
    Defendant has invoked the right to silence if they wait a significant amount of time,defendant is remarandized, and the questions are limited to a crime that was not the subject of the earlier questioning
57
Q

Invoking a right to counsel:

A

The request for counsel can be invoked only by an unambiguous request

58
Q

If the accused invokes his right to counsel, all questions must cease until:

A
  1. the accused is given an attorney; or
  2. the accused initiates further questioning

However, if there is a break in “custody” (e.g., being
released into the general prison population), the police can come back and ask Defendant to waive his Miranda rights after 14 days

Crim Pro (3 decks)

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