Arrest, Search and Seizure - Category Flashcards
Three classifications of interactions between peace officers and persons:
- Consensual Encounters.
- Investigatory Stops/Detentions
- Arrests
U.S. v. Mendenhall - how did the respondent consent?
Voluntary search of her person
How many elements will be used by courts to determine whether an arrest has occurred?
Four elements:
- intent
- authority
- actual seizure
- understanding
Constitutional Amendment protecting life, liberty, property without due process
The Fifth Amendment
“… nor be deprived of life, liberty, or property, without due process of law…”
When in relations to being interrogated must someone be advised on their rights?
Prior to interrogation
What was the outcome of the Miranda v. AZ?
The Miranda Rights
When someone wants to remain silent, what must happen?
The interrogation must cease.
What case provided for the 14-day break in Miranda custody ?
Maryland v. Shatzer
Hint: Mary said: “shhhh for 14 days”
What court case deals with consensual, voluntary nature of confessions?
Creager v. State
Hint: Creager was full of Crap
What type of offense can PO arrest for without a warrant, if the offense had been committed in his presence and view?
Any. Art. 14.01. OFFENSE WITHIN VIEW (b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
What will PO do if the violation of protective order happened in the presence of the officer?
SHALL arrest. Art. 14.03. AUTHORITY OF PEACE OFFICERS.
(b) A peace officer SHALL arrest, without a warrant, a person the peace officer has probable cause to believe has committed an offense under PC Sec. 25.07 (protective order)… if committed in the presence of the peace officer.
What will PO do if the violation of protective order did NOT happened in the presence of the officer?
MAY arrest. Art. 14.03. AUTHORITY OF PEACE OFFICERS. (a) Any peace officer MAY arrest, without warrant: violation protective order NOT in PO’s presence.
What are the options for PI?
Art. 14.031. PUBLIC INTOXICATION. In lieu of arresting, if the individual NOT a child… PO may:
- release if… detention is unnecessary for the protection of the individual or others; and
- the individual: is released to the care of an adult who assumes responsibility; or
- verbally consents to voluntary treatment for chemical dependency… and if accepted (can’t accept if belligerent).
What can PO based on _____ of a credible person that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.
Representation
Art. 14.04. WHEN FELONY HAS BEEN COMMITTED.
Court case that dealt with an imminent escape issue?
Frye v. State
PO need only show that he reasonably believed escape was imminent and no time to procure a warrant.
Hint: Flying Frye, Fleeing
For voluntary consent, must you tell them they can refuse?
No
Schlecloth v. Bustamonte
You do not need to tell him that he has the right to not consent.
Case law - absent exigency, PO may not make a warrantless entry for a routine felony arrest.
Payton v. New York
absent exigent circumstances, a PO may not make a warrantless entry into a suspect’s home to make a routine felony arrest.
Case law - establishes exigency for enter to break a violent fight
Brigham City, Utah v. Stuart
exigent circumstances such as breaking up a violent fight permit warrantless entry into dwelling without a warrant.
Case law - POs Kannot kreate exigency
Kentucky v. King
PO cannot create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.
Two main elements of the 4th amendment are…
- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and
- no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Requisites of a warrant
Art. 15.02. REQUISITES OF WARRANTS
- “The State of Texas”
- person… or some reasonably definite description
- offense
- signed by the magistrate
Requisites of complaint
CLARIFY Art. 15.04. COMPLAINT. The affidavit made before the magistrate or district or county attorney is called a “complaint” if it charges the commission of an offense.
What means are permitted to affect an arrest with a warrant?
All reasonable means
Art. 15.24. WHAT FORCE MAY BE USED In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the accused.
Meaning of capias
- a writ
- after commitment/bail
- before trial
- command to arrest the accused
Art. 23.01. DEFINITION OF A “CAPIAS”. In this chapter, a “capias” is a writ that is: (1) issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial, or by a clerk at the direction of the judge; and (2) directed “To any peace officer of the State of Texas”, commanding the officer to arrest a person accused of an offense and bring the arrested person before that court immediately or on a day or at a term stated in the writ.
When PO can break down a door to make an arrest?
In case of felony.
Art. 15.25. MAY BREAK DOOR In case of felony, the officer may break down the door of any house for the purpose of making an arrest, if he be refused admittance after giving notice of his authority and purpose.
What is a hunch or feeling of intuition?
Mere suspicion
Definition of PC
There are two - PC to search and PC to arrest
PC to search (why certain items are at a certain place on a certain person)
PC to arrest (EEO of the offense; an offense has been or is being committed [by the person to be arrested])
Court case - subjective good faith of PC alone is not enough.
Beck v. Ohio
Hint: Oh, Beck had no faith
The probable cause test, then, is an objective one meaning that, for there to be probable cause, the facts must be such as would warrant a belief by a reasonable man.” “If subjective good faith alone (of probable cause) were the test, the protection of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects’ only in the discretion of the police.”
Can a high crime along can be PC for a stop?
No
But, reasonable suspicion, the actions of person(s), and the totality of circumstances may lead to the 3rd step of probable cause)
Is there a time of day / night requirement?
Not a requirement but can be a contributing factor if more than just a condition and rather another circumstance.
If you find a sharpened screwdriver, it can be considered…
tool of a crime
We arrest if we have PC. Who is the ultimate authority to determine if there was enough PC?
The courts
When court are deciding if there was enough PC, what do they look at?
totality of circumstances
Must info be known prior to search / seizure to justify it?
Only that information known to the officer at the moment
Court case - PC is factual and practical, not legal technicality
Illinois v. Gates
Hint: Gates into his perspective; in fact, Gates was ill, I Guess it’s good enough, for a regular person
Reasonable suspicion definition
sufficient articulable facts and circumstances, and reasonable inferences drawn from those facts, which would lead a reasonable officer to conclude that criminal activity is afoot.
Temporary detention definition
holding a person for a limited time, but who, as yet, is not answerable to a criminal offense
Court case - temporary limited stop to investigate a crime
Terry v. Ohio
Hint: Time Out to figure things out
For investigative detention, what is the first required element?
Reasonable suspicion by a peace officer that some activity out of the ordinary is or has taken place. You must be able to articulate why you have detained this person
What must you make between a person to detain and suspicious activity?
Some indication to connect the person with the suspicious activity.
To do an investigative detention, what must I show about the suspicious activity?
Must certain activity be related to a certain criminal offense - any officer may look for. Some indication the suspicious activity is related to a specific offense. Has the offense occurred? What is the offense? Is there RS to suspect this person of committing the offense.
May PO interview a detained person? Ask Qs?
An officer may conduct an interview to determine what, if anything is occurring. The court will consider the status of the person being interviewed (i.e. are they in custody or free to leave)
You may orally command the person to remain for a reasonable length of time that can be satisfactorily accounted for, while actively involved in the investigation at hand. You may take the person with you to check out a possible crime scene.
What may be required of a detained individual?
A person cannot be required to identify himself, even when a detention is lawful. Persons who have been lawfully detained are under no obligation to answer questions posed by officers.
You may take the person with you to check out a possible crime scene.
Court case - required to ID themselves, detained v. arrested
Brown v. Texas
Hint: illegal immigrants were ID-ed in Brownsville, TX
Court case - on a tip from an informant, you can approach and remove a weapon from a certain place on someone
Adams v. Williams
Hint: (Weapon) At Waistband
Why do we conduct frisks?
Officer safety
Who may be frisked?
Officer may frisk if the situation calls for it; if there is reasonable FEAR* that the SP may be in possession of a weapon.
*TCOLE term
Case law - allow for temporary stop and frisking
Terry v. Ohio
Frisk inside clothing without first feeling a weapon, you must articulate _____ a contraband
immediately apparent
Case law - search the passenger compartment of a vehicle
Michigan v. Long
Hint: Officer Long reaching for a gun in the passenger’ compartment
When found during a frisk, ____ may be seized and arrest made.
weapons
Case law - allows contraband found during a frisk that it was immediately apparent, can be admissible
Minnesota v. Dickerson
How much force can be used to frisk?
Reasonable amount
Search definition
A search is generally defined as an examination or inspection of a location, vehicle, or person by a law enforcement officer for the purpose of locating objects or substances relating to or believed to relate to criminal activity.
What must search warrant be based upon?
PC
What must a warrant specify?
The warrant must specify the items to be searched for and the specific location of the search. The warrant must be supply not only probable cause and the nature of the items but also set forth PC as to why the PO believes the item is at the location to be searched.
Case law - defendant’s right to challenge evidence collected when a warrant was based on a false statement
Franks v. Delaware
Hint: Faulty Frank, Frankly, Del was Aware about the false statement
Can arrest warrant order search of a location?
No A x S (cannot)
S - A (can)
What must PO do before entering premises to execute a search warrant?
Knock and announce
Case law - requiring PO to make their presence know prior to executing a search warrant
Wilson v. Arkansas
Hint: Wack on A door
Court require us to wait before entering a location
Wilson v. Arkansas
Hint: Willi’s son Announced himself before entering (need another hint)
Case law - allow us to enter location if POs are refused entry
U.S. v. Banks
Hint: forcing entry into a bank
Case law - demonstrating reasonable suspicion that knock and announce would be useless
Hudson v. Michigan
Hint: HMM… they are not opening; Huggin Sons with Missing Guns is useless
Exceptions to knock and announce
- Present a threat of physical violence, such as occupant’s criminal history or propensity for violence;
- Be futile or a “useless” gesture;
- Result in the likelihood that evidence would be destroyed.
Who may be searched?
A person under arrest may be searched.
When can you search a passenger compartment of a MV incident to arrest?
The passenger compartment may be searched incident to arrest of an occupant only if the officer can demonstrate he or she had reason to believe evidence of the crime for which the suspect was arrested will be found in the car.
Case law - permissible scope of a search incident to arrest
Chimel v. CA
Hint: Chimes are permitted in California; submarines with chimney scopes are off California’s coast
Case law - permissible scope of a search incident to arrest
Chimel v. California (Chimes are permitted in California) In Chimel the Court approved the concept of a search incident to an arrest of a person. Chimel approved the search of a person and the area immediately surrounding the person incident to that person’s lawful arrest. Belton next extended that option to a motor vehicle.
What scope?
The area immediately around the person arrested may be searched. In a car, passenger compartment.
What case law was a FORMER standard for searching a vehicle incident to arrest?
New York v. Belton
Hint: new belt tightly wraped around the entire car
What case law was a CURRENT standard for searching a vehicle incident to arrest?
Arizona v. Gant
Hint: Grumpy Ants are searching for cars in hot Arizona
What case law allows for the search of a readily mobile vehicle?
Carroll v. U.S.
Hint: Chrismas Carrolling throughout US in readily mobile vehicles
Do you need exigency to use automobile exception?
The Court held that exigent circumstances are NOT a required part of the Automobile Exception of the Carroll Doctrine (need PC and readily mobile vehicle).
Case law - lessened expectation of privacy in MV
United States v. Chadwick
Hint: Chad had less expectation for Wick
The warrantless search of motor vehicles is permitted by the courts because persons have a lessened expectation of privacy in a motor vehicle due to its inherent mobility and the fact that it is driven on public roads where its occupants and contents are open to view.
Referenced case law allowing an officer to search an entire vehicle including closed containers?
California v. Acevedo
Hint: In California, Avocados are transported in closed containers
The officer may search the entire MV, bumper to bumper, and any container therein in which the contraband would fit.
Referenced case law allowing an officer to search passengers?
Wyoming v. Houghton
Hint: Why, my Hough is a passenger? Huffy Hough was asking: “Why the passengers?”
If PC to stop MV, all subsequent searches of its contents are legal as well.
Where do open fields begin?
Where curtilage ends
For consent to be a waiver of protection, it must be given
voluntary and knowing
Level of certainty needed for a consensual search?
none
GA v. Randaph, one says YES, the other says NO, who “wins”?
the NOs have it
What makes consent involuntary?
duress
coercion
mere acquiescence to PO’s authority
Only someone with ____ interest, can give consent
possessory and proprietary
U.S. v. Jacobson - know the summary
infringement
Hint: Jacob liked his fringe
A search occurs when “an expectation of privacy that society is prepared to consider reasonable is infringed.
U.S. v. Colbert - know the summary
U. S. v. Colbert, if property is discarded, it is still a search?
Hint: NObody could search the celebrity Colbert
If a peace officer observes, examines, or inspects property whose owner has “voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it…”, no search has occurred.
Case law - voluntary abandonment must be independent of PO misconduct
Comer v. State
Hint: comer policia abandonada
For criminal procedure purposes, the relevant inquiry is whether the actor, by dispossession himself of the property has so relinquished his “reasonable expectation of privacy” in that property that a subsequent gov inspection and appropriation of that property cannot be said to constitute a “search and seizure” within the meaning of the 4th.
2 prerequisites of the plain view exception
- POs must be lawfully present to see what they see
- It must be immediately apparent to the officer that what they see is contraband or somehow connected with criminal activity.
Can you seize an item in plain view if you are reasonably positive it’s contraband?
NO
Primary purpose of the exclusionary rule?
deter police misconduct.
Case law - exclusionary rule to all levels of court
Mapp v. Ohio
Hint: Oh! spread it all over the map)
Case law - exclusionary rule to evidence indirectly obtained
Silverthorne Lumber Co. v. United States
Hint: Silver Lumber is indirect and exclusive
Extended the exclusionary rule to evidence not only directly obtained as a result of unconstitutional police behavior but also to evidence indirectly obtained.
On the federal level, with a good faith exception, PO acts with _____ on a search warrant issued by a magistrate?
Reasonable reliance
Hint: Federals reasonably relies on good faith
State of TX, exception to CCP 38.23, PO acting on a warrant based on…
PC
Under State v. Doughterty, is not an inevitable discovery?
True
Hint: no daughters were inevitably discovered in TX
In TX, State v. Daugherty, that the warrant based upon PC. The fruits of the execution of the warrant will be suppressed even if PO knew nothing of the deficiencies. There is no inevitable discovery!
Another name of the exclusionary rule
Fruits of the poisonous tree
Hint: An Apple a day keeps a judge / IA away
