Bill of Rights - Searches and Seizures Flashcards
Right and against unreasonable searches and seizures clause
Article III Sec. 2. [General clause] The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and [Warrant clause] no search warrant or warrant of arrest shall issue except upon [1] probable cause to be [2] determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and [3] particularly describing the place to be searched and the persons or things to be seized.
Explain the requirement of personal determination of a judge for the determination of probable cause to issue a warrant of arrest?
The judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure he shall:
(1) personally evaluate the rpeort and the supporting documents submitted by the fiscal regarding the existence of probable cause, and on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
Requisites for an in flagrante delicto arrest
In flagrante delicto warrantless arrest:
1. person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and
2. such overt act is done in the presence or within the view of the arresting officer.
No need probable cause here unlike hot pursuit arrest
Requisites for a valid search warrant
Requisites for a valid search warrant:
1. probable cause is present;
2. such presence is determined personally by the judge;
3. the complainant and the witnesses he or she may produce are personaly examined by the judge, in writing and under oath or affirmation;
4. the applicant and the witnesses testify on facts personally known to them; and
5. the warrant specifically describes the person and place to be searched and the things to be seized
Probable cause for a valid search warrant
Probable cause for a valid search warrant - such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched.
* PC must be within the personal knowledge of the complainant and the witness, and not merely based on hearsay.
* Judge must make probing questions not merely pro forma
* PC msut be shown by best evidence that could be obtained under the circumstances
* Judge must not simply rehash the contents of the affidavits but must make his own extensive inquiry on the existence of such license, as well as on whether the applicant and the witness have perosnal knowledge thereof.
Personal properties which may be seized in a search warrant
- Subject of the offense
- Stolen or embezzled and other proceeds, or fruits of hte offense or
- Used or intended to be used as the means of committing an offense
What is a general warrant?
A general warrant is a prohibited warrant. It is defined as a search or arrest warrant that is not particular as to the person to be arrested or the property to be seized. It is one that allows the seizure of one thing under a warrant describing another and gives the officer executing the warrant the discretion over which items to take.
What are the exceptions to the search warrant requirement?
Exceptions to the search warrant requirement:
1. Warrantless search incidental to a lawful arrest
2. Seizure of evidence in plain view (recall elements)
3. Search of a moving vehicle (recall reason)
4. Consented warrantless search
5. Customs search
6. Stop and Frisk search
7. Exigent and Emergency Circumtances
8. Search of vessels and aircraft; and
9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations
Is probable cause still required for warrantless search and seizure?
Yes, probable cause is required in searches and seizures. Absent probable cause, the articles seized could not be admitted and used as evidence against the person arrested. Probable cause, in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to committed to be committed.
Factors to be considered to determine whether consented search is valid consent (unequivocal, intelligent, no duress, etc.)
The following characteristics of the person giving consent and the environment in which consent is given:
1. age of the defendant
2. w/n he was in a public or secluded location;
3. w/n he object to the search or passively looked on;
4. education and intelligence of the defendant;
5. presence of coercive police procedures;
6. defendant’s belief that no incriminating evidence will be found;
7. nature of police questioning;
8. environment in which the questioning took place; and
9. possibly vulnerable subjective state of the person consenting
Burden of proof showing that consent was freely given is on the State
Requirements of plain view doctrine application
Plain view doctrine applies:
1. law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area
2. discovery of the evidence in plain view is inadvertent; and
3. it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure
How do we apply plain view doctrine to an object in a package
Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant.
However, if the package proclaims its contents, whether by its distinctive conficuration, its transparency, or of its contents are obvious to an observer, then the contents are in plain view and may bbe seized.
Valid stop and frisk search
Stop and frisk – police stops a citizen on the street, interrogates him, and pas him for warpons or contrabands.
The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing ro possibly concealed weapons.
The apprehending police officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him. It should therefore be emphasized that a search and seizure should precede the arrest for htis principle to apply.
Is probalbe cause required in stop and frisk?
No, it does not have to be probable cuase, but it can be mere suspicion. It has to be “genuine reason” to serve the purposes of the “stop and frisk” exception.
Difference between stop and frisk and search incidental to lawful arrest
Search incidental to lawful arrest – a crime must have been committed and the search conducted within the vicinity to search for weapons, as well as to preserve evidence
Stop and frisk – to prevent the occurrence of acrime
