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bar crim law/ crim procedure > 4th amendment > Flashcards

4th amendment Flashcards

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1
Q

what is the exclusionary rule

A

victim of illegal search or coerced confession can have that product of the illegal search or that coerced statement EXCLUDED from any subsequent criminal prosecution

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2
Q

when does the exclusionary rule not apply (not X/C but limitations)

A

1) not apply to GRAND JURY proceedings
(a) witness may be compelled to testify based on illegally seized evidence
2) not remedy in CIVIL proceeding
3) not remedy in PAROLE REVOCATION
4) does not apply to IMPEACHMENT PURPOSES
(a) can come in to impeach D
5) not apply to violations of the “Knock and announce” doctrine.

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3
Q

does the exclusionary rule prevent impeachment?

A

NO. illegally seized evidence may be admitted to impeach the credibility of the D’s trial testimony

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4
Q

does the exclusionary rule prevent impeachment of other witness, not just the D?

A

YES. can only impeach the D not other defense witness

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5
Q

does the exclusionary rule apply to knock and announce violations?

A

NO

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6
Q

what is the fruit of the poisonous tree doctrine

A

excludes not only illegal seized evidence but will also exclude ALL evidence obtained or derived from POLICE ILLEGALITY

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7
Q

does the fruit of the poisonous tree apply to miranda violations?

A

NO. UNLESS… the police act in bad faith in obtaining such information

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8
Q

what are the 3 ways the government can break the chain b/w the original unlawful search and get evidence under the fruit of the poisonous tree doctrine (III)

A

1) INDEPENDENT SOURCE for the evidence, of the police illegality
2) INEVITABLE discovery.
3) INTERVENING acts of free will on part of the D.

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9
Q

what does the 4th amendment protect citizens against?

A

UNREASONABLE searches and seizures

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10
Q

what must an arrest be based on (type of proof)

A

PROBABLE CAUSE

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11
Q

when are arrest warrants generally not required?

A

when arresting someone in PUBLIC PLACE

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12
Q

Is a warrant needed for an IN HOME arrest absent emergency?

A

YES need warrant for arrest in home

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13
Q

what do the police need to arrest you and take you down to station for finger printing or interrogation?

A

PROBABLE CAUSE

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14
Q

what do the police need to make a terry stop?

A

in order to make the stop the police need

1) REASONABLE SUSPICION supported by
2) articulatable facts of criminal activity

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15
Q

what 2 things needs to be met for police to do a terry stop

A

1) reasonable suspicion supported by

2) articulatably facts of criminal activity

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16
Q

is a mere hunch enough for aritucable facts that criminal activity is going down for police to make a terry stop?

A

NO. Mere hunch is NEVER enough

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17
Q

when may the police make a car stop?

A

when they have at least REASONABLE SUSPICION that a crime has been violated

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18
Q

what is the x/c for car stops where they do not need reasonable suspicion?

A

road blocks. Just have to be neutral.

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19
Q

what may the police do during a routine traffic stop?

A

1) a SNIFF of a drug dog is
2) NOT A search so long as police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries

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20
Q

when may the cops use a drug dog sniff on a car doing a routine traffic stop?

A

so long as police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries

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21
Q

can the police bring a drug drug onto a persons PORCH to sniff?

A

NO. that is a search. W/o probable cause cannot do drug sniff outside home

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22
Q

what is the steps for a search or seizure on both essay and MBE (5)

A

1) Is there GOVERNMENT CONDUCT?
2) did the D have a REASONABLE EXPECTATION OF PRIVACY?
3) did the police have a valid SEARCH WARRANT?
4) if not a valid search warrant were the police acting on GOOD FAITH?
5) X/C to the general rule for a warrant for a search or seizure

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23
Q

what is government conduct?

A

1) publicly paid police on or OFF duty
2) any PRIVATE INDIVIDUAL acting at the direction of the public police
(

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24
Q

when do privately paid police constitute government conduct?

A

when they are DEPUTIZED POWER TO ARREST

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25
Q

examples of privately paid police

A

1) store security guards
2) subdivision police
3) campus police

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26
Q

what does the second step to the search or seizure analysis mean for REASONABLE EXPECTATION OF PRIVACY?

A

just a standings argument to bring. If do not have reasonable expectation of privacy than do not have standing to challenge illegal search or seizure

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27
Q

where does a person have reasonable expectation of privacy (3 places usually)

A

1) if OWN the premises that are searched
2) if you LIVE ON the premises searched. (ex: renting)
3) overnight guest (toothbrush rule)

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28
Q

when does a personally general not have a reasonably expectation of privacy?

A

ANYTHING YOU HOLD OUT TO THE PUBLIC EVERYDAY

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29
Q

what are the examples where a person does not have a reasonable expectation of privacy

A

1) the sound of your VOICE
2) style of HANDWRITING
3) paint on the outside of your car
4) records held by a BANK
5) monitoring the location of your car on PUBLIC STREETS or in your driveway
6) anything that can be seen across the OPEN FIELDS
7) anything that can be seen from flying over in the PUBLIC AIR SPACE
8) the odors emanating from your luggage (sniff doctrine)
9) trash SET ON THE CURB for collection

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30
Q

what 2 things need to be met for a valid search warrant? (2 P’s)

A

1) probable cause

2) particularity

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31
Q

what is the std for probable cause

A

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

32
Q

what does particularity mean in a search warrant?

A

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

33
Q

when may an officer’s affidavit or probable cause based on an informant be sufficient for search warrant?

A

by the totality of the circumstances

34
Q

what do you need to look for in the TOC test for informants?

A

1) credibility of informant and

2) basis of knowledge

35
Q

can a valid warrant be based on all informants tip even if that informant is unanimous?

A

NO. but can be based on PART

36
Q

when do cops not need to do the “knock and announce rule”

A

if exigent circumstances exist

1) dangerous, futile or
2) inhibit the investigation (destroying evidence)

37
Q

what is the general rule for officer’s good faith on a search warrant

A

an officers good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements

38
Q

what are the 4 x/c for an officers “good faith” exception to relying on a search warrant

A

1) affidavit underlying the warrant is so lacking PROBABLE CAUSE that no reasonable cop would rely upon it
2) affidavit underlying the warrant is so lacking PARTICULARITY that no reasonable cop would have relied upon it
3) the cop or prosecutor LIED TO or MISLEAD the judge when seeking it
4) the judge is BIASED

39
Q

what are the 6 x/c that a warrant is needed for a search or seizure

A

1) search incident to ARREST
2) car exception
3) plain view X/C
4) Consent
5) stop and frisk
6) exigent circumstances, hot pursuit, special needs

40
Q

when is a search warrant not needed after an arrest?

A

when the arrest is a LAWFUL arrest.

41
Q

when must the search be conducted for the X/C of search warrant for search incident to arrest?

A

the arrest and search must be contemporaneous in

1) time and
2) Place

42
Q

what area can be searched following an arrest?

A

the person and the area within the persons reach can be searched

43
Q

when can police search the interior of a car incident to a lawful arrest?

A

1) the arrestee is UNSECURED and still may gain access to the interior the car OR
2) the police reasonably believe that evidence of the offense WHICH THE PERSON WAS ARRESTED for may be found in vehicle

44
Q

can the cops search the data of a cell phone after a lawful arrest?

A

NO.

45
Q

can the cops search the physical appearance of a cell phone?

A

YES

46
Q

what is the community caretaker X/c for a search warrant?

A

if a cop faces an emergency that threatens the health or safety of the public or individual.

47
Q

what is the car X/C for a search warrant needed?

A

in order for cops to search anything or anybody the car there must be P

48
Q

what must there be for cops to search the entire car and persons in it?

A

PROBABLE CAUSE

49
Q

what is the rule for containers in a car for search warrant?

A

if the cops have probable cause they can search the entire car and any package or luggage that could REASONABLY CONTAIN THE ITEM they had probable cause to look for.
(looking for drugs can almost look anywhere)

50
Q

can the probable cause requirement to search a car x/c for a search warrant, can the probable cause arise AFTER the was was stopped

A

YES BUT the probable cause must arise before anything is searched or anybody searched

51
Q

what is the plain view doctrine X/C for a search warrant

A

anything in cops plan view they can seize

52
Q

what 2 things need to be met for the plan view doctrine

A

1) legitimately present: cops must be there lawfully

2) IMMEDIATELY APPARENT: item must appear to be contraband

53
Q

is a brown paper bag enough for the plan view doctrine?

A

NO

54
Q

what must consent be for a x/c to a search warrant

A

consent must be VOLUNTARY

55
Q

when may 3 party consent happen

A

where 2 or more people have an equal right to piece of property either can consent to warrant less search

56
Q

what if 1 person does not consent and another does?

A

the one who DOES NOT consent control

57
Q

can the cops remove lawfully the non-consenting person and then search the property with the others consent?

A

YES. if co-occupant who does not consent is removed from the premise for a reason unrelated for the refusal (lawful arrest) the police may search with others consent

58
Q

who can consent for another for a search?

A

anyone with APPARENT AUTHORITY can validly consent

ex has the keys to place

59
Q

what is a terry stop

A

a brief detention for the purposes of investigating suspicious conduct

60
Q

what is the legal std for a terry stop to be valid

A

REASONABLE SUSPICION

61
Q

what is higher probable cause or reasonable suspicion?

A

probable cause is higher std to meet.

62
Q

what is a terry frisk used for?

A

pat down of the outer clothing and body to CHECK FOR WEAPONS

63
Q

what is the plan feel rule for a terry frisk

A

if a cop REASONABLY BELIEVES by PLAN FEEL that something is a weapon OR contraband , then can seize.

64
Q

can a cop squeeze or manipulate an item to determine what it is under the plan feel doctrine

A

NO.

65
Q

what is the time frame for a fleeing felon where search warrant is not needed?

A

15 minutes behind the fleeing felon.

66
Q

can police do inventory searches after arrest?

A

YES. cops can search personal belongings and entire car to make an inventory

67
Q

public school searches

A

warrant less searches of public school students effects such as lockers and backpacks is allowed.

68
Q

can public school students who engage in extra circular actives be subject to random drug trust?

A

YES. Can be even going to a school dance

69
Q

when will a school search be reasonable?

A

1) it offers a MODERATE CHANCE of finding evidence of wrongdoing; and
2) the measures adopted to carry out the search are REASONABLY RELATED to the objectives of the search and;
3) search is NOT excessively intrusive

70
Q

general warrant x/c

A

1) lawful arrest
2) consent
3) car x/c: probable cause
4) plan view: legal right to be and see in plan view
5) lessor intrusion not search (stop and frisk: reasonable suspicion)
6) true emergency

71
Q

can prosecutor use illegal obtained evidence for impeachment and grand jury proceedings

A

YES

72
Q

when can police use deadly force

A

may use deadly force to apprehend a FLEEING FELON when the felon

1) threatens death OR serious bodily harm AND
2) deadly force is necessary to prevent his escape

73
Q

when can a cop not use deadly force

A

cannot use deadly force to apprehend an UNARMED, NON DANGEROUS FELON

74
Q

does a search warrant allow the police to search persons found on premises who are not named in the warrant

A

NO. a search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.

  • While the police would be able to search a person discovered on the premises for who they had probable cause to arrest, b.c search would be incident to a lawful arrest.
75
Q

Does squeezing a bag constitute a search?

A

yes

bar crim law/ crim procedure (10 decks)

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