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Exam 4 > 4th Amendment Study Guide > Flashcards

4th Amendment Study Guide Flashcards

1
Q

What information is in the arrest warrant?

A
  • subjects name
  • judges name
  • offense
  • command language
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2
Q

where do you get the legal authority to make an arrest?

A
  • statutory authority
  • peace officer status
  • citizens arrest authority
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3
Q

is there a time limit on arrest warrants?

A

NO

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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.
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5
Q

what is required to make a warrantless arrest for a felony offense?

A
  • PC

- the person must be in a public area

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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
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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
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8
Q

what factors help determine he RESIDES there?

A
  • drivers license address
  • utility bill
  • surveillance
  • neighbors
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9
Q

what factors help determine he IS THERE NOW?

A
  • car in the driveway
  • he answers his home telephone
  • surveillance
  • neighbors
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10
Q

what is required to enter into a 3rd parties home to arrest the defendant?

A
  • search warrant
  • warrant exception
  • consent
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11
Q

what is required to make a warrantless misdemeanor arrest?

A
  • PC
  • crime must occur in officers presence
  • must be in public area
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12
Q

what does “in the officers presence” mean?

A
  • officer must have observed it through his senses.
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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.

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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
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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
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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

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17
Q

what is breaking?

A
  • any unannounced entry into a dwelling
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18
Q

what are forms of knocking?

A
  • literally knocking
  • telephone call
  • bullhorn/loudspeaker
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19
Q

what “announcement” is legally acceptable?

A

POLICE, WARRANT, OPEN THE DOOR!

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20
Q

what are refusals?

A
  • silence
  • running
  • destruction of evidence
  • gunfire
  • verbal refusal
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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
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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.
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23
Q

what happens if you violate the knock and announce rule?

A
  • civil liability
  • administrative discipline
  • criminal prosecution (possible)
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24
Q

who may issue a search warrant?

A
  • any federal judge OR

- state court judge from a “court of record

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25
Q

what judge do you go to for a search warrant for REAL PROPERTY?

A
  • a magistrate judge from the district where the property is located
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26
Q

what judge do you go to for a search warrant for TERRORIST ACTIVITIES?

A
  • a magistrate judge from the district where the crime occurred.
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27
Q

explain the constitutional requirement for a judge to be neutral and detached?

A
  • 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
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28
Q

whats the constitutional requirement for search warrants?

A
  • every search warrant must particularly describe:
    - the place to be searched
    - the person or things to be seized
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29
Q

what are the components of a search warrant affidavit?

A
  • PC crime was committed
  • PC items exist from the crime
  • PC items are currently in the place to be searched
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30
Q

whats the purpose behind the particularity requirement?

A

1) limits the scope of search of the officer

2) lets the citizen know what items the officers will take

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31
Q

what is staleness?

A
  • probable cause can not be established when there is stale information
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32
Q

what type of items does the Federal Rules of Criminal Procedure 41(C) authorize for seizure?

A
  • 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
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33
Q

How do you describe these items with particularity:

  • books
  • contraband
  • stolen property
  • single occupancy dwellings
  • multi occupancy dwellings
  • persons
  • vehicles
A
  • 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
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34
Q

what failure to give a correct address automatically invalidate the warrant?

A
  • NO, just as long as you have a good physical description of the residence in the warrant
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35
Q

what types of errors on the face of the warrant automatically invalidate the warrant?

A
  • no list of items to be seized on the warrant itself

- no address or description of the property on the warrant itself

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36
Q

what are the legal requirements for putting false and misleading statements on the affidavit?

A
  • knowing false statements invalidate the warrant

- false statements to gain PC invalidate the warrant

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37
Q

who may issue a telephonic warrant?

A
  • any federal judge
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38
Q

under what set of circumstances should you consider getting a telephonic search warrant?

A
  • 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.
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39
Q

what will happen to you evidence if you fail to get a telephonic search warrant?

A
  • it will be inadmissible at trial
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40
Q

describe the procedure for getting a telephonic search warrant?

A
  • create a duplicate orignal
  • read it to the judge
  • judge prepares original
  • issue the warrant
  • time of execution should be entered on duplicate original.
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41
Q

who may request a search warrant?

A
  • any federal agent
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42
Q

who may execute a search warrant? who may assist?

A
  • any federal agent may execute

- other LEO personnel can assist, sometimes private citizens

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43
Q

does the search warrant expire?

A
  • YES, search warrant is good for 14 days.
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44
Q

whats the scope of a premises search warrant?

A
  • you can search anywhere on the premises where the item can fit inside.
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45
Q

are outbuildings located within the curtilage part of a premises search warrant?

A

YES

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46
Q

are buildings in “open fields” part of a premises search warrant?

A

NO

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47
Q

are vehicles located in the curtilage (garage or driveway) part of the premises search warrant?

A

YES only if under control of the owner

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48
Q

are vehicles parked on the street part of a premises search warrant?

A

NO

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49
Q

can you search containers belonging to:

  • an occupant
  • social visitor (dinner only)
  • overnight guest
  • commercial visitor (delivery truck)
A
  • occupant: YES
  • social visitor: NO
  • overnight guest: YES
  • commercial visitor: NO
50
Q

are you required to present the warrant prior to entering the home to execute it?

A

NO

51
Q

if the telephone rings while you’re inside after executing the warrant, can you answer it?

A

YES

52
Q

may you seize handguns found on the residence to make it safe?

A

YES

53
Q

does the defendant have a right to have his attorney present during execution of warrant?

A

NO

54
Q

may you use fore to enter and execute the warrant?

A

YES

55
Q

what is the warrant inventory?

A
  • receipt of the items taken during seizure
56
Q

what is the warrant return?

A
  • when you return the warrant to the issuing judge along with the warrant inventory
57
Q

what are the steps you must follow after executing the search warrant?

A
  • give a copy of the inventory and search warrant to the defendant
  • lock up dwelling
  • warrant return and inventory back to issuing judge
58
Q

what is the protective sweep?

A
  • limited search for PEOPLE at the residence who can attack you
59
Q

what is an automatic sweep?

A
  • sweeping the areas for PEOPLE not evidence or contraband.
  • no reasonable suspicion needed
  • plain view applies
60
Q

what is an extended sweep?

A
  • sweeping other areas other than where suspect was arrested

- reasonable suspicion that others are present is needed

61
Q

how do you establish reasonable suspicion others are present?

A
  • noises
  • see others go in residence
  • reputation for traveling with others
  • defendant admits others are there
62
Q

if arrest occurs outside the residence (front porch), may you automatically do a protective sweep inside of the residence?

A

NO, unless:

  • escorting the subject inside in good faith to grab his belongings.
             OR
  • you have reasonable suspicion others are inside
63
Q

what is the scope of the search for a protective sweep?

A
  • you can only search areas where people can hide (people sized areas)
64
Q

what is the Summers Doctrine?

A
  • seizing people coming or leaving the scene during execution of search warrant
65
Q

Accoring to Summers Doctrine, when can you seize people during the execution of search warrant for CONTRABAND or warrant for MERE EVIDENCE?

A
  • 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
Q

are you allowed to automatically frisk persons found upon the premises when executing the search warrant?

A
  • 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
Q

are you allowed to automatically FRISK persons found upon the premises when executing the search warrant?

A
  • NO

- unless you have REASONABLE SUSPICION that the person is presently ARMED AND DANGEROUS.

68
Q

are you automatically allowed to SEARCH persons found on the premises?

A
  • 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
Q

what are the elements of the plain view doctrine?

A
  • lawfully present
  • items incriminating nature immediately apparent
  • lawful right of access (can’t enter without a warrant)
  • no manipulation
70
Q

what is the Carroll Doctrine (mobile conveyance)?

A
  • warrantless search and seizure of a vehicle
71
Q

what are the justifications for the Carroll Doctrine?

A
  • mobility of a vehicle makes it impractical to get a warrant
72
Q

what other forms of transportation does the Carroll Doctrine apply to?

A
  • boats
  • RV’s
  • motorcycles
  • airplanes
  • mobile homes on wheels
73
Q

what are the elements of the exception to a warrant for the Carroll Doctrine?

A
  • vehicles have reduced expectation of privacy

- mobility of vehicles makes it impractical to get a warrant

74
Q

how do you establish probable cause evidence of a crime or contraband is in a vehicle (think checkpoint)?

A
  • officer senses
  • officers observations
  • dog sniff
  • 3rd party info.
75
Q

what is readily mobile?

A
  • the vehicle appears to be operational
76
Q

does the vehicle have to be moving to be readily mobile?

A

NO

77
Q

what if the vehicle is sitting on private property, does the doctrine apply?

A

NO, DO NOT SEARCH/SEIZE!!

78
Q

what are examples of a public place where you CAN search mobile conveyances?

A
  • public lots
  • driveway
  • public street
79
Q

are you required to search the vehicle at the scene? can you tow it and search it later?

A
  • NO

- you may tow it and search later within a reasonable time

80
Q

whats the scope of the search of the Carroll Doctrine?

A
  • it depends on the item you are searching for

- drugs: you can search anywhere the drugs can fit including trunk and locked containers

81
Q

what happened in california v Acevedo?

A
  • cops pulled over Acevedo to search a specific container
82
Q

whats the Acevedo rule?

A
  • 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
Q

what are 3 recognized exigent circumstances?

A
  • hot pursuit
  • destruction of evidence
  • emergency scene
84
Q

what are the elements of hot pursuit?

A
  • 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
Q

what are the elements of destruction of property?

A
  • officer must have REASONABLE BELIEF others are inside the dwelling
  • and REASONABLE BELIEF destruction of evidence is imminent
86
Q

what is the emergency scene exception?

A
  • 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
Q

are you allowed to process the scene by collecting evidence related to the crime?

A

NO. It is not a crime scene!

88
Q

does plain view apply in an emergency scene?

A
  • YES, but it has to be near emergency situation

- you can not go into other rooms outside of the emergency

89
Q

can you make continuous entries into the residence after the warrant has expired?

A

HELL NO

90
Q

whats the justification behind the search incident to a lawful arrest?

A
  • when an officer makes a lawful arrest, the officer can conduct a search incident to arrest.
91
Q

what are the legal requirements for a search incident to arrest?

A

1) lawful arrest (PC + public place OR warrant)

2) contemporaneous search

92
Q

whats the scope of a search incident to arrest?

A
  • head to toe
  • areas of immediate control
  • containers

FULL BLOWN SEARCH!

93
Q

if arrested outside the residence, can you do a search incident to arrest inside the residence?

A

NO, you can NOT search inside!

94
Q

if arrested in the residence, where can you do a search incident to arrest?

A
  • in the room of the arrest

- generally, closet, under the bed, inside drawers

95
Q

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?

A
  • if secured, you can not do a SIA

- NEVER TRUNK

96
Q

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?

A
  • YES, you CAN do an SIA of the vehicle

- NEVER TRUNK

97
Q

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?

A
  • inventory search
  • consent search
  • terry frisk
  • protective sweep
98
Q

what is required to do a CONSENSUAL search?

A
  • voluntary consent

- actual or apparent authority

99
Q

what are the factors the courts consider in determining whether the consent was voluntary?

A
  • age
  • nature of questioning
  • physical punishment
  • suspects cooperation
  • alcohol impairment
  • threats/promises/misrepresentation
100
Q

what are the factors the courts consider in determining whether the consent was voluntary?

A
  • age
  • nature of questioning
  • physical punishment
  • suspects cooperation
  • alcohol impairment
  • threats/promises/misrepresentation
101
Q

can you make threats?

A
  • yes, but only a threat to APPLY for a warrant
102
Q

what are threats NOT allowed?

A
  • threatening that you already have a warrant

- threatening that you’re going to get a warrant ANYWAY

103
Q

what is the scope of consent?

A
  • consent must be voluntary

- actual or apparent authority

104
Q

can a person limit or revoke consent?

A

YES to both

105
Q

are miranda rights required first?

A

NO

106
Q

what is actual authority?

A
  • individual actually OWNS or CONTROLS an item
107
Q

what is apparent authority?

A
  • an individual who you reasonably, but mistakenly believe has authority (babysitter)
108
Q

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
A
  • 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
Q

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?

A
  • if one party objects, YOU DON’T HAVE CONSENT!
110
Q

what is the inventory of lawfully impounded personal property?

A
  • when law enforcement go through a car or other container after a lawful impoundment.
111
Q

what are the justifications behind the inventory of lawfully impounded personal property?

A
  • to protect owners property
  • to protect officers against claims of stealing property
  • to officers against danger
112
Q

what are two requirements for an inventory?

A

1) officer must have lawfully come into possession of the property being inventoried (lawful impoundment)
2) standardized policy

113
Q

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
A
  • passenger compartment: YES
  • tires: NO
  • containers: YES
  • gas tank: NO
  • engine compartment: YES
  • trunk: YES
  • break open door panels: NO
114
Q

what is the purpose of an administrative search?

A
  • conducted for health and safety of public
115
Q

can an administrative inspection be requested as a pretext search for evidence of a crime?

A
  • NO
116
Q

give examples of a valid administrative search?

A
  • sobriety checkpoints
  • DL/registration checkpoints
  • info. gathering checkpoints
117
Q

whats the legal requirement to conduct an administrative search?

A
  • the search must be conducted as part of a general regulatory or statutory scheme
118
Q

is reasonable suspicion or probable cause required to do an administrative search?

A
  • NO
119
Q

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?

A
  • NO, the citizen may no longer elect to leave.
120
Q

What is required for an arrest?

A
  • probable cause
  • arrest authority
  • lawful right of access

Exam 4 (12 decks)

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