ASS questions Flashcards
Purpose of Analytical Model?
Determining whether the evidence will be admissible in a court of law or subject to suppression and thereby inadmissible.
Three major questions of Analytic Model
Is there a Fourth Amendment right at stake
Did the law enforcement officer act pursuant to a valid warrant
Does one of the exceptions to the Fourth Amendment Warrant Requirement apply
Key phrases of the Fourth Amendment
Secure in their persons, houses, papers and effects (four areas of protection)
Against unreasonable searches and seizures
No warrant shall issue unless supported by probable cause. Supported by oath and affirmation
But upon probable cause (50% of belief)
Items must be described with particularity
Affirmation will be laid out in affidavit
What is a search
Governmental trespass of a protected area for the purpose of gaining information or any governmental act that violates a person’s reasonable and justifiable expectation of privacy
Two types of searches
Katz and Per se
What is Katz search
any governmental act that violates a persons reasonable and justifiable expectation of privacy
What is a Per se search
a governmental trespass of a protected area for the purpose of gaining info
Two part test to help determine if there is a Reasonable Expectation of privacty
Does the suspect have a subjective (personal) expectation of privacy?
Does society recognize #1 as being reasonable?
What is a Seizure
Any exercise or dominion of control over a thing or effect. There has to be a meaningful interference
What isn’t a seizure
When an officer lawfully purchases item or the item is voluntarily given to the officer
Formal Arrest
Taking, seizing or detaining of the person by
1. actual physical touching
2. any other act that indicates an intention to take the person into custody
De Facto Arrest
Circumstances of the police contact would lead a reasonable person to believe that he was not free to leave
Key factors: length of stop
did you use handcuffs or other forms of confinement
did you remove suspect from scene
Number of officers
Officer commands or demands
In order for an arrest to be reasonable what must it be supported by
Probable Cause
4th Amendment violations; actions directed at the offending officer
Civil Liability
Criminal Liability
Employment sanctions
Revocation
Exclusionary Rule
If officers violate one of the provisions of the Bill of Rights then the evidence obtained in violation of the Amendment may not be used at trail
Adopted by federal courts in Weeks v. US (1914)
Applied to the States Mapp V. Ohio (1961)
Justifications of the Exclusionary Rule
Protect the 4th Amendment
Insure Judicial Integrity
Deter future police misconduct
Fruits of the Poisonous Tree
The suspect must have standing to challenge
evidence acquired from unconstitutional acts or evidence illegally obtained shall not be admitted into court
Good Faith Exception
officers are acting in reasonable reliance on a warrant issued by a neutral and detached judge, any evidence obtained by officer’s actions will be admissible even later when warrant deemed unconstitutional
Officers lose Good Faith Exception
affidavit is so lacking in probable cause that no reasonable officer would have relied on it
warrant is defective on its face
affiant lied or mislead the magistrate
magistrate abandoned the neutral and detached role
Good faith has extended outside of search warrant situations
arrest warrants
invalidated state statutes
Consent based searches
Inevitable discovery doctrine
Illegally obtained evidence will not be suppressed if the prosecution can establish by a preponderance of the evidence that the evidence would have been eventually discovered by other lawful means
Requirement: eventually discovered by lawful means
Independent Source Doctrine
prosecution can establish that the illegally obtained evidence was also derived from a separate source, then the exclusionary rule will not have to be applied
Attenuation Doctrine
Evidence still admissible when the connection between the unconstitutional police conduct the evidence is remote or has been interrupted
Factors: Timing between contact and discovery
presence of lawful intervening circumstance
Analytical model quetsions
1.Is there a Fourth Amendment right at stake
2. Did the law enforcement officer act pursuant to a valid warrant
3. Does one of the exceptions to the Fourth Amendment Warrant Requirement apply
Does the defendant have a reasonable expectation of Privacy
Fourth amendment protects people not just places
Protection extends not only to the person but also the items found on that person
Reasonable expectation of privacy in a persons residence
Protection against unreasonable searches and seizures of a person’s home
Protection prevents warrantless entries into home or seizures of intimate details from the home without consentor exigence
Curtilage
given same protection as the home
area immediately surrounding a dwelling house it is necessarily and habitually used for family and domestic purposes includes buildings located there as well
Test to determine what property is considered curtilage
proximity of the area to the home
whether the area is within an enclosure that includes the home
nature/use and observation
steps, if any by the homeowner to protect the area from public view
driveways, lanes and front sidewalks
may not have reasonable expectation of privacy if no steps to limit its accessibility and visibility to the general public
When can you enter curtliage
if you develop the cause that criminal activity is occurring on the curtilage you can enter the curtilage to investigate
Open Fields
Rural : any unoccupied or undeveloped area outside the curtilage ex. crop land
Communities: areas where the individual does not have a REP
Exceptions of warrantless seizures
Seizure of property does occur when the officer meaningfully interferes with an individual’s possessory interest in that property
seizure of personal property found in the public that is contraband does not equate to a seizure
Abondoned/lost property is not protected
Lost property
Katz still applies
Valid Warrant requirements
must be issued by a neutral and detached judge = no interest in the matter and is capable of determining probable cause
Nebraska judges who may issue warrants
issued by any judge of county, district, appeals court or supreme court for execution anywhere in the state of Nebraska
Clerk Magistrate may issue for property located in his or her county
Probable Cause
A fair probability that the contraband will be found in the place to be searched
Based on the totality of circumstances
Affidavits
must show the information relied upon is still fresh
it should reflect the likelihood of finding contraband is high
Depends on the nature of the crime
Sources and rules of warrants
officer training/ experience
hearsay sources (victim/witness reliable)
Identifiable sources (anonymous tippers/ confidential informant)
Sources in custody (must have corroborating information in order to establish probable cause, cant rely on their info alone)
Search Warrant and Affidavit
Must identify the target of the search with no reasonable probability of searching another premises
Use address and description of the residence
Curtilage is automatically covered
scope: smaller is better
Search warrants must be done under oath and writing with exception of
telephonic warrants: Applicant must contact county attorney, if CA agrees they will contact judge, judge contacts applicant, judge makes voice recording of the testimony, if the recording is lost or damages, any warrant issued pursuant to is invalid
Criminal Sanctions of search warrants
Making a false statement under oath
neglecting to serve a warrant
warrant shall not be public until executed
Execution of the warrant
10 days to execute
only executed in daytime 7am-8PM
only officers named in warrant should execute
gaining entry: officers MUST knock and announce unless stated in warrant
After execution officers must leave copy of warrant and property list/receipt
