Chap. 12 - Searches, Seizures, and Arrests Flashcards
Must all searches and seizures satisfy the 4th amendment’s reasonableness requirement?
Yes.
What are the two remedies available to the defendant whose 4th rights have been violated by the government?
- In a criminal prosecution, he or she may invoke the exclusionary rule.
- She may have a civil action against the offending officer under a civil rights statute, under constitutional tort theory, or under traditional tort theory.
Is evidence obtained by a private citizen, acting on his or her own behalf, subject to the exclusionary rule?
No.
What changed under Katz?
The Supreme Court held that the 4th Amendment protects people, not places.
What is the two-part test to privacy?
- An individual must have a subjective expectation to privacy.
- That expectation must be objectively reasonable.
What is the definition of a search?
When an expectation of privacy that society is prepared to consider reasonable is infringed.
What is a seizure?
Meaningful interference with an individual’s possessory interest in property.
If there is no reasonable expectation of privacy, is there a search?
No.
- A police officer’s observations made from a public place, such as a sidewalk,is not a search, even if they are of the inside of a house through a window.
- Observing the exterior of an automobile, including a license plate, is not a search.
- A dog sniff of an item or person is not a search.
What happened in Kyllo?
The Supreme Court invalidated warrantless use of thermo-imaging on a home.
“Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”
Do people enjoy the right to privacy in hotels?
They have a reasonable expectation to privacy, but it depends on whether or not the guest paid the bill, or was the guest of the guest. etc.
What happened in Bond vs. United States?
A border patrol’s quick squeeze of a bus passenger’s soft luggage was determined to be a search, even though there was considerable evidence that passengers commonly touched each other’s luggage in a manner no less intrusive than that of the border patrol officer’s.
What is probable cause?
It is the minimum amount of evidence necessary for a search, seizure, or arrest to be proper under the Fourth Amendment. The definition depends on the context. It is more than mere suspicion and less than the standard required to prove a defendant guilty at trial (beyond a reasonable doubt).
“Probable cause is present when the trustworthy facts within the officer’s knowledge are sufficient in themselves to justify a ‘person of reasonable caution’ in the belief that seizable property would be found or that the person to be arrested committed the crime in question.”
Is innuendo or conjecture that is not supported by facts considered?
No. It must have some credibility.
What are the 5 standards of proof?
- Reasonable suspicion.
- Probable cause.
- Preponderance of evidence.
- Clear and convincing evidence.
- Beyond a reasonable doubt.
a. Frisks and stops
b. Arrests and searches
c. Standard of proof in all civil cases
d. Required to prove specific facts and in other circumstances
e. Required for conviction and punishment.
What is an informant?
It is a person who has knowledge concerning a crime because of his or her involvement in crime. The reliability of such information is hotly debated.
What is the two prong test for using information from an informant?
- The affidavit had to contain information about the basis for the informant’s information. (to help the judge see whether the informant’s allegations were well founded.
- The officer had to provide the judge with reasons for believing that the informant was reliable.
What is the totality of the circumstances test?
The magistrate must be given enough information to make his or her own determination concerning the credibility and reliability of the informant.
Does an anonymous tip justify a stop?
No.
Is having a dog sniff a search?
No. They also are enough to create ‘fair probability” and probable cause, unless it is known that the dog frequently errs.
Is evidence excluded when the judge mistakes probable cause and the officer acts in good-faith?
No.
Is an officer who is misleading a judge acting in good faith?
No.
When is a warrant facially defective?
- unsigned warrants.
- warrants that contain an inadequate description of the place or thing to be searched or seized.
- Failure of the magistrate to require the supporting affidavit to be under oath
- Such a lack of evidence that an officer could not in reasonable, good faith believe that probable cause exists.
They can rely on a warrant that contains technical and typographical errors, unless the errors are so fundamental that they render some element of the warrant defective.
What is the purpose of warrants?
To protect citizens from overzealous law enforcement practices. “It was done so that an objective mind might weigh the need to invade the privacy in order to enforce the law.”
Is less evidence required to sustain a search if a warrant was obtained prior to the search?
Yes.
How might a defendant attack any evidence seized pursuant to a warrant through a motion to suppress?
Yes. Determinations made by a magistrate are less likely to be overturned than those made by police officers.
If a warrant is facially invalid, then any fruits of a search thereof must be excluded?
Yes. Unless the officer uses false information to convince the magistrate that probable cause exists, the good-faith exception does not apply. Also, if an officer knows that the magistrate issuing the warrant is not neutral and detached.
What are the requirements for a warrant to be issued?
- The evidence presented must establish probable cause to believe that within the area to be searched, the items sought will be found.
- There must be probable cause to believe that the items sought are connected to criminal activity.
- The area to be searched and any item to be seized must be described with particularity.
- The facts that are alleged to establish probable cause must be support by oath or affirmation.
- The warrant must be issued by a neutral and detached magistrate.
If the building to be searched is an apartment building or similar multi-unit structure, the specific unit must be stated in the warrant?
Yes.
Are court clerks able to issue warrants?
Yes.
What may warrants be issued for?
- any item that constitutes evidence of a crime
- is the fruit of a crime
- is contraband
- or is used to commit a crime.
- May be used to seize or search any property, place.
- It may be issued to be executed when a triggering event occurs.
If an officer searches beyond the scope of a warrant, does the exclusionary rule make the fruits from the forbidden area inadmissible at trial?
Yes.
Generally, does a warrant to search premises authorize the police to search the occupants of the premises?
No.
Can occupants be detained as they search the home?
Yes, but not for a prolonged period of time. Once the evidence by an occupant has passed, he or she should be released.
Generally, are warrants supposed to be executed during the day or night?
The day.
What are reasons to execute a warrant at night?
- An anticipated nighttime delivery of illegal goods justifies a nightime warrant.
- A concern that evidence of a crime be destroyed at night.
Federal warrants must be executed within how many days of issuance?
10.
