4th Amendment Study Guide Flashcards
1
Q
What information is in the arrest warrant?
A
- subjects name
- judges name
- offense
- command language
2
Q
where do you get the legal authority to make an arrest?
A
- statutory authority
- peace officer status
- citizens arrest authority
3
Q
is there a time limit on arrest warrants?
A
NO
4
Q
what is the arrest warrant return?
A
- this document gets returned to the judge who issued it after the warrant is served along with the inventory sheet.
5
Q
what is required to make a warrantless arrest for a felony offense?
A
- PC
- the person must be in a public area
6
Q
if the defendant is in his home, what legal authority do you need to enter and arrest him?
A
- PC + a warrant OR warrant exception
7
Q
assuming you have an arrest warrant, what are the requirements to enter his home and arrest him?
A
- establish residency
- establish he is in home during time of arrest
- knock and announce
8
Q
what factors help determine he RESIDES there?
A
- drivers license address
- utility bill
- surveillance
- neighbors
9
Q
what factors help determine he IS THERE NOW?
A
- car in the driveway
- he answers his home telephone
- surveillance
- neighbors
10
Q
what is required to enter into a 3rd parties home to arrest the defendant?
A
- search warrant
- warrant exception
- consent
11
Q
what is required to make a warrantless misdemeanor arrest?
A
- PC
- crime must occur in officers presence
- must be in public area
12
Q
what does “in the officers presence” mean?
A
- officer must have observed it through his senses.
13
Q
are you legally required to make a misdemeanor arrest? if so what are your options?
A
NO, you can issue a citation or detain them.
14
Q
if the defendant is in his home, and you want to enter and arrest him, what’s required?
A
- an arrest warrant
- warrant exception
- consent
15
Q
if the defendant is in a third parties home, and you want to enter and arrest him, whats required?
A
- search warrant
- warrant exception
- consent
16
Q
what is the purpose of the “knock and announce” rule?
A
1) safety to officer and safety to public
2) to prevent destruction of private property
3) to recognize and individuals right of privacy
17
Q
what is breaking?
A
- any unannounced entry into a dwelling
18
Q
what are forms of knocking?
A
- literally knocking
- telephone call
- bullhorn/loudspeaker
19
Q
what “announcement” is legally acceptable?
A
POLICE, WARRANT, OPEN THE DOOR!
20
Q
what are refusals?
A
- silence
- running
- destruction of evidence
- gunfire
- verbal refusal
21
Q
what type of exigent circumstances EXCUSES compliance with the knock and announce rule?
A
- destruction of evidence
- dangerous situation
- hot pursuit
- useless gestures
- ruses or decoys
22
Q
what is a no knock warrant? under what circumstances will a judge issue one?
A
- when you do not have to knock when you anticipate danger or violence OR when you anticipate destruction of evidence
- the judge will issue one under EXIGENT circumstances.
23
Q
what happens if you violate the knock and announce rule?
A
- civil liability
- administrative discipline
- criminal prosecution (possible)
24
Q
who may issue a search warrant?
A
- any federal judge OR
- state court judge from a “court of record
25
what judge do you go to for a search warrant for REAL PROPERTY?
- a magistrate judge from the district where the property is located
26
what judge do you go to for a search warrant for TERRORIST ACTIVITIES?
- a magistrate judge from the district where the crime occurred.
27
explain the constitutional requirement for a judge to be neutral and detached?
- the judge can not have a financial interest in the crime
- a judge can not have family ties to the crime
- a judge can not be involved in the case
28
whats the constitutional requirement for search warrants?
- every search warrant must particularly describe:
- the place to be searched
- the person or things to be seized
29
what are the components of a search warrant affidavit?
- PC crime was committed
- PC items exist from the crime
- PC items are currently in the place to be searched
30
whats the purpose behind the particularity requirement?
1) limits the scope of search of the officer
| 2) lets the citizen know what items the officers will take
31
what is staleness?
- probable cause can not be established when there is stale information
32
what type of items does the Federal Rules of Criminal Procedure 41(C) authorize for seizure?
- evidence of a crime
- fruits of a crime
- contraband
- person to be arrested or lawfully restrained
- property used, or intended to be used in a crime
33
How do you describe these items with particularity:
- books
- contraband
- stolen property
- single occupancy dwellings
- multi occupancy dwellings
- persons
- vehicles
- books: author, subject matter, publication date
- contraband: controlled substances, packaging material
- stolen property: make, model, serial numbers
- single occupancy: physical descriptions, directions, photographs
- multi occupancy: building #, unit #
- persons: gender, weight, height, race
- vehicles: make, model, color
34
what failure to give a correct address automatically invalidate the warrant?
- NO, just as long as you have a good physical description of the residence in the warrant
35
what types of errors on the face of the warrant automatically invalidate the warrant?
- no list of items to be seized on the warrant itself
| - no address or description of the property on the warrant itself
36
what are the legal requirements for putting false and misleading statements on the affidavit?
- knowing false statements invalidate the warrant
| - false statements to gain PC invalidate the warrant
37
who may issue a telephonic warrant?
- any federal judge
38
under what set of circumstances should you consider getting a telephonic search warrant?
- the area in between an exigent circumstance and when there is enough time to obtain a traditional warrant.
- in situations when you might otherwise conduct a warrantless search.
39
what will happen to you evidence if you fail to get a telephonic search warrant?
- it will be inadmissible at trial
40
describe the procedure for getting a telephonic search warrant?
- create a duplicate orignal
- read it to the judge
- judge prepares original
- issue the warrant
- time of execution should be entered on duplicate original.
41
who may request a search warrant?
- any federal agent
42
who may execute a search warrant? who may assist?
- any federal agent may execute
| - other LEO personnel can assist, sometimes private citizens
43
does the search warrant expire?
- YES, search warrant is good for 14 days.
44
whats the scope of a premises search warrant?
- you can search anywhere on the premises where the item can fit inside.
45
are outbuildings located within the curtilage part of a premises search warrant?
YES
46
are buildings in "open fields" part of a premises search warrant?
NO
47
are vehicles located in the curtilage (garage or driveway) part of the premises search warrant?
YES only if under control of the owner
48
are vehicles parked on the street part of a premises search warrant?
NO
49
can you search containers belonging to:
- an occupant
- social visitor (dinner only)
- overnight guest
- commercial visitor (delivery truck)
- occupant: YES
- social visitor: NO
- overnight guest: YES
- commercial visitor: NO
50
are you required to present the warrant prior to entering the home to execute it?
NO
51
if the telephone rings while you're inside after executing the warrant, can you answer it?
YES
52
may you seize handguns found on the residence to make it safe?
YES
53
does the defendant have a right to have his attorney present during execution of warrant?
NO
54
may you use fore to enter and execute the warrant?
YES
55
what is the warrant inventory?
- receipt of the items taken during seizure
56
what is the warrant return?
- when you return the warrant to the issuing judge along with the warrant inventory
57
what are the steps you must follow after executing the search warrant?
- give a copy of the inventory and search warrant to the defendant
- lock up dwelling
- warrant return and inventory back to issuing judge
58
what is the protective sweep?
- limited search for PEOPLE at the residence who can attack you
59
what is an automatic sweep?
- sweeping the areas for PEOPLE not evidence or contraband.
- no reasonable suspicion needed
- plain view applies
60
what is an extended sweep?
- sweeping other areas other than where suspect was arrested
| - reasonable suspicion that others are present is needed
61
how do you establish reasonable suspicion others are present?
- noises
- see others go in residence
- reputation for traveling with others
- defendant admits others are there
62
if arrest occurs outside the residence (front porch), may you automatically do a protective sweep inside of the residence?
NO, unless:
- escorting the subject inside in good faith to grab his belongings.
OR
- you have reasonable suspicion others are inside
63
what is the scope of the search for a protective sweep?
- you can only search areas where people can hide (people sized areas)
64
what is the Summers Doctrine?
- seizing people coming or leaving the scene during execution of search warrant
65
Accoring to Summers Doctrine, when can you seize people during the execution of search warrant for CONTRABAND or warrant for MERE EVIDENCE?
- warrants for CONTRABAND:
- detain people throughout search
- may use force to detain
- warrants for MERE EVIDENCE:
- may detain people briefly
- release if there no safety issue
66
are you allowed to automatically frisk persons found upon the premises when executing the search warrant?
- NO
- unless you have PC an item listed in the search warrant is on their person OR
- they are listed in the search warrant as a person to be searched.
67
are you allowed to automatically FRISK persons found upon the premises when executing the search warrant?
- NO
| - unless you have REASONABLE SUSPICION that the person is presently ARMED AND DANGEROUS.
68
are you automatically allowed to SEARCH persons found on the premises?
- NO
- unless you have PC an item listed in the search warrant is on their person OR
- they are listed in the search warrant as a person to be searched.
69
what are the elements of the plain view doctrine?
- lawfully present
- items incriminating nature immediately apparent
- lawful right of access (can’t enter without a warrant)
- no manipulation
70
what is the Carroll Doctrine (mobile conveyance)?
- warrantless search and seizure of a vehicle
71
what are the justifications for the Carroll Doctrine?
- mobility of a vehicle makes it impractical to get a warrant
72
what other forms of transportation does the Carroll Doctrine apply to?
- boats
- RV's
- motorcycles
- airplanes
- mobile homes on wheels
73
what are the elements of the exception to a warrant for the Carroll Doctrine?
- vehicles have reduced expectation of privacy
| - mobility of vehicles makes it impractical to get a warrant
74
how do you establish probable cause evidence of a crime or contraband is in a vehicle (think checkpoint)?
- officer senses
- officers observations
- dog sniff
- 3rd party info.
75
what is readily mobile?
- the vehicle appears to be operational
76
does the vehicle have to be moving to be readily mobile?
NO
77
what if the vehicle is sitting on private property, does the doctrine apply?
NO, DO NOT SEARCH/SEIZE!!
78
what are examples of a public place where you CAN search mobile conveyances?
- public lots
- driveway
- public street
79
are you required to search the vehicle at the scene? can you tow it and search it later?
- NO
| - you may tow it and search later within a reasonable time
80
whats the scope of the search of the Carroll Doctrine?
- it depends on the item you are searching for
| - drugs: you can search anywhere the drugs can fit including trunk and locked containers
81
what happened in california v Acevedo?
- cops pulled over Acevedo to search a specific container
82
whats the Acevedo rule?
- if you have PC to believe a "specific container" is inside a vehicle, you can ONLY search that container.
- if you wish to search other areas, you must have additional PC gained after the initial stop OR consent OR a search incident to arrest.
83
what are 3 recognized exigent circumstances?
- hot pursuit
- destruction of evidence
- emergency scene
84
what are the elements of hot pursuit?
- must begin in a public place
- must have PC to arrest
- serious crime
- continuous pursuit
- PC to enter the residence (witness must have saw the suspect go into a certain residence)
85
what are the elements of destruction of property?
- officer must have REASONABLE BELIEF others are inside the dwelling
- and REASONABLE BELIEF destruction of evidence is imminent
86
what is the emergency scene exception?
- reasonable grounds an emergency exists
- immediate need for assistance
- PC to believe the area or place to be searched is where the emergency exists
87
are you allowed to process the scene by collecting evidence related to the crime?
NO. It is not a crime scene!
88
does plain view apply in an emergency scene?
- YES, but it has to be near emergency situation
| - you can not go into other rooms outside of the emergency
89
can you make continuous entries into the residence after the warrant has expired?
HELL NO
90
whats the justification behind the search incident to a lawful arrest?
- when an officer makes a lawful arrest, the officer can conduct a search incident to arrest.
91
what are the legal requirements for a search incident to arrest?
1) lawful arrest (PC + public place OR warrant)
| 2) contemporaneous search
92
whats the scope of a search incident to arrest?
- head to toe
- areas of immediate control
- containers
FULL BLOWN SEARCH!
93
if arrested outside the residence, can you do a search incident to arrest inside the residence?
NO, you can NOT search inside!
94
if arrested in the residence, where can you do a search incident to arrest?
- in the room of the arrest
| - generally, closet, under the bed, inside drawers
95
if the defendant is in the vehicle or a recent occupant of the vehicle, can you do a search incident to arrest inside the vehicle if the defendant is secured under ARIZONA V GRANT?
- if secured, you can not do a SIA
| - NEVER TRUNK
96
if the defendant is in the vehicle or a recent occupant of the vehicle, can you do a search incident to arrest inside the vehicle if the defendant is UNSECURED under ARIZONA V GRANT?
- YES, you CAN do an SIA of the vehicle
| - NEVER TRUNK
97
what are your options in light of the Supreme Courts decision in ARIZONA V GRANT if you don't meet the reason to believe standard?
- inventory search
- consent search
- terry frisk
- protective sweep
98
what is required to do a CONSENSUAL search?
- voluntary consent
| - actual or apparent authority
99
what are the factors the courts consider in determining whether the consent was voluntary?
- age
- nature of questioning
- physical punishment
- suspects cooperation
- alcohol impairment
- threats/promises/misrepresentation
100
what are the factors the courts consider in determining whether the consent was voluntary?
- age
- nature of questioning
- physical punishment
- suspects cooperation
- alcohol impairment
- threats/promises/misrepresentation
101
can you make threats?
- yes, but only a threat to APPLY for a warrant
102
what are threats NOT allowed?
- threatening that you already have a warrant
| - threatening that you're going to get a warrant ANYWAY
103
what is the scope of consent?
- consent must be voluntary
| - actual or apparent authority
104
can a person limit or revoke consent?
YES to both
105
are miranda rights required first?
NO
106
what is actual authority?
- individual actually OWNS or CONTROLS an item
107
what is apparent authority?
- an individual who you reasonably, but mistakenly believe has authority (babysitter)
108
can these people give consent to search:
- husband for wife
- parent for minor child
- parent for adult child
- minor for parent
- roommate for roommate
- landlord for tenant
- husband for wife: YES
- parent for minor child: YES
- parent for adult child: NO, mostly
- minor for parent: YES but not for rooms
- roommate for roommate: NO
- landlord for tenant: NO
109
what happens when two people have a reasonable expectation of privacy in the area and one gives you consent to search, but the other does not?
- if one party objects, YOU DON'T HAVE CONSENT!
110
what is the inventory of lawfully impounded personal property?
- when law enforcement go through a car or other container after a lawful impoundment.
111
what are the justifications behind the inventory of lawfully impounded personal property?
- to protect owners property
- to protect officers against claims of stealing property
- to officers against danger
112
what are two requirements for an inventory?
1) officer must have lawfully come into possession of the property being inventoried (lawful impoundment)
2) standardized policy
113
what locations have the courts upheld the inventory in a vehicle:
- passenger compartment
- tires
- containers
- gas tank
- engine compartment
- trunk
- break open the seats or door panels looking for drugs
- passenger compartment: YES
- tires: NO
- containers: YES
- gas tank: NO
- engine compartment: YES
- trunk: YES
- break open door panels: NO
114
what is the purpose of an administrative search?
- conducted for health and safety of public
115
can an administrative inspection be requested as a pretext search for evidence of a crime?
- NO
116
give examples of a valid administrative search?
- sobriety checkpoints
- DL/registration checkpoints
- info. gathering checkpoints
117
whats the legal requirement to conduct an administrative search?
- the search must be conducted as part of a general regulatory or statutory scheme
118
is reasonable suspicion or probable cause required to do an administrative search?
- NO
119
once a checkpoint area has been entered, is law enforcement required to allow the defendant to leave it if he changes his mind about entering?
- NO, the citizen may no longer elect to leave.
120
What is required for an arrest?
- probable cause
- arrest authority
- lawful right of access
