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Criminal Procedure > 4th Amendment - Search Warrant Requirements & Exceptions > Flashcards

4th Amendment - Search Warrant Requirements & Exceptions Flashcards

1
Q

What are the requirements for a valid warrant?

A

Warrant must be issued by:

  1. A neutral and detached magistrate
  2. Based on Probable Cause AND
  3. Describe w/ particularity the thing to be seized or the place to be searched
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2
Q

Facts Supporting Probable Cause

A

May come from any of the following sources:

  1. Officers pers. observations
  2. Info. from reliable, known informant or from unknown informant that can be indep. verified OR
  3. Evidence:
    1. seized during stops based on reas. suspicion,
    2. Evidence Discovered in Plain View OR
    3. Evidence obtained during consensual searches
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3
Q

What is Probable Cause ?

A

Facts & Circ. that would warrant a reas. pers. to conclude that:

  1. The indiv. in quest. has committed a crime OR
  2. Evidence of crim. activity can be found at a particular location

Evaluated by an obj. standpoint - what an officer subjectively believed doesn’t matter

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4
Q

Particularly Describe Place & Items

A
  • The validity of the warrant is limited to the items described
  • Once the items identified in the warrant have been discovered, warrant doesn’t auth. further exploratory search of the prem.
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5
Q

Exceptions to the Warrant Requirement

A
  1. Lawful Arrest
  2. Automobile Exception
  3. Plain View
  4. Consent
  5. Hot Pursuit
  6. Stop & Frisk (aka Terry Stop)
  7. Special Needs Exception
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6
Q

Search Incident to Lawful Arrest - Timing

A
  • Arrest must take place b/f the search
  • Search must be contemporaneous in Time & Place with arrest
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7
Q

Search Incident to Lawful Arrest - Scope

A

Arrestee’s person & area w/in immed. control

  • limited to the suspect and her wingspan (area w/in D immed. controlwhere she might reach to destroy evidence or get a weapon)
  • Includes:
    • pockets of clothing & Open containers in pockets
    • Containers in immed. assoc. with the pers. (purse)
      • If large enough to conceal a weapon or evidence of crime
    • NOT Cell Phone (must get war. to search)
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8
Q

If a suspect is arrested in a home, what is the scope of a search incident to a lawful arrest?

A

The area within his lunging distance NOT the entire home

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9
Q

What is the knock and announce rule?

A

Police must normally knock and announce their identity b/f entering a home to execute a warrant

  • Exceptions: Knock & Announce not req. if police have reas. susp. to believe that doing so will:
  1. Endanger Officers
  2. Lead to the destruction of evidence OR
  3. Lead to flight of the suspect
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10
Q

If police have a reas. suspicion that others in the home may put them at risk, what action may the police take?

A

Police can conduct a cursory protective sweep to find people lying in wait with the search

  • limited to places where people may hide
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11
Q

Vehicle Search Incident to Arrest

A

4th Amend. requires that law enforcement demonstrate either:

  1. That the arrestee is w/in reaching distance of the passenger compartment at the time of the search,
    • and As a result, may pose an actual & continuing threat to the officer’s safety OR
    • A need to preserve evidence from being tampered with by the arrestee OR
  2. That it is reasonable that evidence of the offense or arrest might be found in the car
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12
Q

Impounded Vehicle

A

A legally impounded car may be searched as part of a routine inventory search

  • Including closed containers
  • Warrantless search doesn’t need to take place at the time the vehicle is seized
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13
Q

What is the authority to conduct a search incident to a citation ?

A

There is no auth. to search

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14
Q

Existence of Exigent Circumstances

A

Warrantless entry into home or bus. is presumed unlawful unless the gov’t demonstrates both prob. cause & Exigent Circ.

  • Test - Totality of the Circumstances
  • Police can’t create the exigency by threats or conduct that violates the 4th Amendment
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15
Q

Exigent Circ. - Hot Pursuit

A

Police can enter a private building during hot pursuit, to search the building while they are present & to seize evidence found there if:

  1. Police have PC to believe that an indiv. has committed a felony AND
  2. they are pursuing him to arrest him
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16
Q

Exigent Circ. - Emergency Situations

A

warantless search is ok if there is a reas. apprehension that the delay required in obtaining a warrant would result in:

  • immed. danger destruction of evidence or
  • the threatened safety of officer or public or
  • suspect likely to flee b/f a warrant can be obtained

Judged by - Police Officer’s obj. reasonable belief

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17
Q

Stop & Frisk - Stop

A

aka Terry Stop

  • limited & temp. intrusionon individual’s freedom of movement
  • Justified on the reasonable suspicion, based on articulable facts, that the detainees are or were involved in criminal activity
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18
Q

How is it determined whether reasonable suspicion exists ?

A

It’s based on the totality of the circumstances

  • Requires more than a vague suspicion
  • but less than probable cause
  • Doesn’t need to be based on police officer’s personal knowledge
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19
Q

When can a reasonable suspicion that crime is about to or has just occured be established ?

A
  1. Informants tip coupled with police investigation tht corroborates the accuracy of the predictions
  2. Police Observation & Eyewitness reports
  3. Running from police in high crime neighborhood
  4. Police bulletin
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20
Q

What is the effect of a tip that provides nothing more than existing information?

A

The tip doesn’t est. even reas. suspicion

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21
Q

Stop & Frisk - Frisk

A

An officer who doesn’t have PC to arrest may make a limited search of the person if he:

  1. has reas. suspicion that the suspect was or is involved in criminal activity AND
    • such as a pat down of outer clothing
  2. That the frisk is nec for the preservation of his safety or safety of others b/c reas. susp. that suspect is armed & dangerous
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22
Q

What is the scope of a Terry Frisk ?

A

The exterior of the clothing to determine if there is a weapon

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23
Q

What may an officer do it, in a Terry Frisk, the officer feels something he immed. knows is a weapon or contraband ?

A

The plain touch doctrine applies - Officer can seize such contraband w/out a warrant

24
Q

Plain Feel Exception

A

If an officer conducting a valid frisk feels an object that has phys. char. that make its identity immediately obvious (PC of contraband)

  • Officer may seize the evidence
25
Q

What may an officer do if, in a Terry Frisk, the officer feels something he immediately knows is not a weapon but upon manipulation, feels may be contraband?

A

The manip. exceeds the scope of the Terry Frisk & the seizure is unreasonable

26
Q

Automobile Exception

A

If police have prob. cause to believe that it comtains contraband or evidence of crim. activity - don’t need war. to search car

  • can search anywhere in car they have PC to believe has contraband
  • Search can extend to passengers belongings & Mobile Home
27
Q

Terry Stop of car

A

Pursuant to lawful stop of vehicle, police may conduct a search of the passenger compartment for weapons if:

  1. Police possess reas. belief that the suspect is dangerous & may gain immed. control of the weapon, AND
  2. The search of the passenger compartment is limited to those areas a weapon may be placed or hidden
  • Police can order occupants out of car they lawfully stopped
28
Q

Pretextual Stop

A

Police can use pretextual stop to investigate if a law has been violated, even if no reas. susp.

  • If they have PC to believe that the law for which the car was stopped has been violated
  • e.g. seizure of drugs const. even though cops stopped car for traffic violation as pretext to investigate hunch occupants poss. drugs
29
Q

Automobile Exception - Containers within the car

A

PC to search a car extends to containers & compartments that reas. could hold the evidence

  • BUT if police have PC to search only containers, they can only search that container NOT the entire car
30
Q

Automobile Exception - Trunk

A

If police have PC to search the trunk, not just containersin the trunk

  • They can search the entire trunk & every container in the trunk, even if locked
31
Q

Plain View Doctrine - Items in Public View

A

Can be seized w/out warrant b/c one can’t have reas. expectation of privacy in things that are exposed to the public

32
Q

Plain View Doctrine - In Private View

A

Where there is a reas. expectation of privacy

  • Officer can seize an item in plain view of the officer even if not named in the search warrant or the discovery was not inadvertant, as long as:
  1. The officer is on the prem. for a lawful purp. AND
  2. The incriminating char. of the item is immed. apparent
33
Q

When does the Plain View Doctrine NOT apply

A

if the officer is not legitimately on the premises

34
Q

What are 2 circ. where the Terry Frisk is extended beyond a person?

A
  1. In auto., where police have reas. suspicion a pers. stopped will have immed. access to a weapon AND
  2. In cursory sweep of interior of a home, when cops enter home to serve warrant based on reas. susp. that there are others who might be present & dangerout to the cops
35
Q

When is no warrant required to seize property ?

A

When the prop. is in the officer’s plain view

36
Q

Contraband not named in a warrant may be lawfully seized pursuant to the plain view doctrine, so long as what?

A

The contraband comes into view within the scope of the warrant

37
Q

A search warrant for a premises carries with it what right against the occupants ?

A

The right to detain occupants during the search but not the right to search them

38
Q

Consent Searches

A

Consent can eliminate the need for police to have PC as well as to first obtain a warrant in order to conduct a search

  • Suspect must give vol. & intelligent consent to the search
    • Intelligent - Knowledge of right to refuse consent to search is 1 factor to be taken into account but its not req.
39
Q

Voluntary Consent

A

No threats of harm, compulsion, or false assertion of lawful auth.

  • Courts evaluate the totality of the circ. in determining whether a person’s response is consent
40
Q

Third-Party Consent

A
  • Can consent to search of property owned by the 3d party
  • Can consent to D prop. only if there is an agency relationship OR
  • Police reas. believe the party consenting had the auth. to do so
  • BUT landlord or hotel manager doesn’t have actual or apparent auth to allow officers to enter apartment or hotel room occupied by another
41
Q

Scope of Consent Search

A

Limited to the scope of consent

42
Q

Consent Search - Jointly Controlled Property

A

Where more than one person has access to & joint expectation of privacy in the place to be searched

  • If only one objects - No Consent
  • If only the consenting party is present - Consent
43
Q

When is consent to search invalid ?

A

Gained by:

  1. Asserting a fake warrant
  2. Fraud
  3. Duress
  4. Unlawful police threat (threat to do something that the officer has no auth. to do)
44
Q

What is the requirement on police to inform persons of ability to decline consent ?

A

There is none

45
Q

Special Needs Searches

A

The state interest must be real, current, and vital problem that can be effectively addressed by the proposed search

  • Primary Purpose Requirement - To protect the pub. from imm. danger
    • If purp is general crime control, then the exception is inadequate
46
Q

What are the requirements for a special needs search or seizure?

A
  1. Must be on a fixed formula that deprives individual officers of the discretion to select the subjects (e.g. stopping every third car)
  2. It must be narrowly tailored in scope to address the specific threat AND
  3. It must be conducted in a location & in manner that minimizes citizen anxiety
47
Q

What is the validity of consent obtained after an unlawful seizure?

A

The consent is the fruit of the poisonous treee

48
Q

What are administrative Searches ?

A

Agency compliance inspections whereby compliance with administrative regulations or health & safety codes are verified for a non-criminal purpose

49
Q

What is a search or seizure w/out a warrant presumptively ?

A

Unreasonable, and gov’t bears burden of proving the search or seizure fell within an established exception to the warrant req.

50
Q

What requirements must be satisfied for an officer to get a warrant authorizing a wiretap?

A

The warrant must:

  1. Be limited to a short pd. of time
  2. have probable cause that a specific crime has been or is about to be committed
  3. Name the person or persons to be wiretapped
  4. Describe w/ particularity the conversations that can be overheard, AND
  5. Include provisions for the termination of the wiretap
51
Q

Standing to Object

A

To est. that search violated 4th amendment rights, D must:

  1. Show legit. expectation of privacy with regard to the search
52
Q

What is the effect of a violation of the knock and announce rule?

A
  1. Police violate the 4th Amendment
  2. BUT violation doesn’t prompt evidence exclusion
53
Q

What is reasonable suspicion ?

A
  1. Reas. Belief
  2. Based on articulable information (more then mere hunch)
  3. That suspect has or is about to engage in illegal or criminal activity
54
Q

How does an officer’s improper subjective basis effect a Terry Stop?

A

Stop is still valid if there was an objectively reas. basis for the stop

55
Q

What is a Terry Search (Frisk)? When is it justified?

A

A cursory protective search for weapons that create imminent danger to an officer or others in close proximity

  • Justified only by reas. suspicion that the suspect is armed and dangerous
    • Not auto. because police did a terry stop
56
Q
A

Criminal Procedure (13 decks)

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