Arrest: Search and Seizure Flashcards
how do you know you are under a seizure?
WHEN under the TOTALITY OF CIRCUMSTANCES a reasonable person does not feel that they can DECLINE OFFICER’S REQUEST or END THE ENCOUNTER
What is an arrest?
when the police takes a person into custody AGAINST HER WILL for purposes of of CRIMINAL PROSECUTION OR INTERROGATION
An arrest must be based on
PROBABLE CAUSE – trust worthy facts or knowledge sufficient for a reasonable person to believe that the suspect committed/ is committing a crime.
Do you need a warrant to arrest someone?
No warrant necessary if arrest occurrs in a public place.
You will need a warrant (generally) for a NON-EMERGENCY arrest of a person in his home.
what is a stop and frisk
when the police have a REASONABLE SUSPICION of criminal activity SUPPORTED BY ARTICULABLE FACTS –not just a hunch. They can then detain the person to investigate
evidentiary search and seizures require what?
a warrant
What four questions must be asked of any search and seizure?
1) does the defendant have a 4th Amendment right (seizure by the govt. concerning a place or thing in which defendant had a reasonable expectation of privacy.
after establishing that there is a 4th amendment right, what next?
2) ask, did the govt. have a valid warrant (issued by NEUTRAL AND DETACHED MAGISTRATE) on a showing of probable cause and reasonably precise as to the Place to be searched and items to be seized.
What if there was no warrant?
3) did the police make a valid warrantless search and seiziure
What two ways can a search and seizure implicate an individual’s fourth amendment rights?
1) search and seizure by a govt. agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy
2) physical intrusion into a constitutionally protected area to obtain information.
Who has standing to assert their 4th amendment right?
a person who has a reasonable expectation of privacy with respect to the place searched or the item seized. the determination is made on the totality of the circumstances. But a person has a reasonable expectation of privacy any time:
1) ownership of a place/ right to possess the place searched
2) place searched was his home.
3) he was an overnight guest of the place searched
may the police search persons found on search premises
the police may detain occupants f the premises during a search, but the popo cannot search persons found on the premises who were not named in the warrant. Popo cannot follow, stop and detain people who left the house shortly before the warrant was executed
All warrantless searches are unconstitutional unless they fit into one of six recognized exceptions to the warrant requirement.
1) search incident to constitutional arrest– popo can search ppl and places where they might stash weapons, can make protective sweep of place if they believe accomplices are present
2) automobile exception– popo must have probable cause
that vehicle contains fruits, instrumentalities or evidence of a crime.
– they can search whole vehicle, and any container that might reasonably contain the item for which they had probable cause to search.
3) Plain view
- - popo must be legitimately on premises
- -discover evidence, fruits or instrumentalities of crime or contraband
- -see this evidence in PLAIN VIEW and
- -have probable cause
4) no warrant needed if the police get valid consent– check whether person giving consent has reasonably apparent authority to consent
5) Stop and Frisk
- -popo may stop a person without probable cause for arrest if she has an ARTICULABLE and REASONABLE SUSPICION of criminal activity. if the po believes this person may be armed/dangerous, they may also conduct a protective frisk.
6) Hot pursuit, evanescent evidence, and emergency aid
- - popo does not need a warrant if they are in search of a fleeing felon
- -po can also seize evidence that might disappear before a warrant can be issued.
Is wiretapping a search under the 4th amendment?
Yes. Wire-tapping and other forms of electronic surveillance violating a reasonable expectation of privacy
What constitutes a valid warrant authorizing wiretap?
1) showing of probable cause
2) suspected persons to be overheard are named
3) warrant describes with particularity convos that can be overheard
4) wiretap ends when the desired info has been obtained
5) return is made to the court, showing what convos have been intercepted
