Consent Flashcards
Why are consent entries and searches allowed?
Because citizens may voluntarily choose to give up their privacy
What are the three essential components of valid consent?
Voluntary and clear
Lawful presence and proper scope
Authority
Who has the burden of proving consent was voluntary?
Police and prosecutor
What standard of proof is needed to show consent was voluntary
Preponderance of the evidence aka probable cause
A person may not consent if they are intimidated or in fear of the police, but they may consent if they are afraid of
Another person
Written consent is not required, but if officers do rely on a written permission, it must be acquired _____ the search begins
Before
Can failing to use an available consent form indicate a lack of voluntariness?
Yes
Do police have to warn an individual of their right to refuse consent aka informed consent
No
Does advising a suspect that he may refuse increase the likelihood that consent was voluntary?
Yes
While an officer waited for a consent form to arrive he asked the defendants girlfriend about her four-year-old son and mentioned reporting incident to DCF is this coercive?
No, because the officer was a mandated reporter, and his request was legitimate and not overbearing
An officer told the defendant that if police searched with a warrant, they were damage the apartment, but if he consented, they would show a little courtesy. Is this coercive?
Yes
Can consent be considered voluntary if an officer announces their intention to apply for a search warrant
Yes but officers must say they will SEEK a warrant and not imply they have the power to issue one themselves
Police may only tell a defendant that they will seek a search warrant if they have information that amounts to
Probable cause
An officer saw a flask in a defendants car. He told the defendant if he did not consent to a search, he would apply for a search warrant. Was this lawful
No, because the officer had no reason to believe the flask contained alcohol or that the defendant was oui. The defendants consent was invalid because there wasn’t probable cause to get a warrant
May Police promise not to charge a suspect in order to get consent to search
Yes, as long as they keep their promise
Police told the defendant they would not charge him with drug possession if he let them search his bedroom drawer. They did not charge him a drug possession, but they did charge him with possession of ammunition they found in the drawer. Was this lawful?
Yes
The suspects _______ background, ________ make up and ______ are relevant to consent
Educational
Emotional
Intoxication
If a defendant is able to converse with Police coherently and change his babies diaper, are they too intoxicated to consent to a search
No
Does prior cooperation indicate voluntary consent? For example, if the defendant asked Police to come to his home.
Yes
Can consent be considered voluntary when the suspects authorizes a search to prove his innocence?
Yes
A defendant demanded to see police identification, and reviewed their warrant before he let them in his house. He later consented to a search of his computer, which had child pornography. What helps this be considered voluntary consent
The suspects assertive reaction gave no indication that he was intimidated by Police
A defendant refused to allow police to take her fingerprints or search your car, but she later consented for Police to examine her phone. Is this voluntary
Yes
Consent from more than one person is usually _______
Voluntarily
For example, if a father and mother agree to allow Police to search their sons room
Is it possible for Police to get voluntary consent from a suspect in custody?
Yes, but it is more difficult
While a suspect may explicitly and implicitly consent, his communications to the police must be
Clear and unambiguous
An officer asked a motorist if he could look inside their trunk. The motor said “OK” and release the lid. Is this implicit or explicit consent
Implicit
An officer called out to a suspect that he knew from a previous drug possession arrest. The suspect responded. I’m clean this time and spread his hands out. The officer stepped in and patted him down finding a vile of amphetamines. Was this an invitation to search?
No
For a physical gesture to indicate consent, it must be in response to either (2)
- An explicit request to enter
- Inexplicit statement about Police purpose (ex Rose we need to speak to Dani about an incident. Where is he now her pointing at the kitchen now becomes a clear invitation to enter)
Voluntary consent may come from a non-English speaker provided the request and response were properly _______
Translated. be sure to document who helped translate ideally, a translated conversation should be recorded
Does unlawful entry invalidate later consent?
Yes
Requesting consent is a investigative step that _________ on the side of the road during a traffic stop
Spontaneously develops
During a car stop if you ask for consent to search the vehicle, does silence mean they consented
No
Who has primary authority to consent to a vehicle search?
The owner. If the owner is not present, the driver may consent to a search. A passenger typically does not have that authority.
During a consent search can officers remove a few screws, holding down the carpet in order to find a false door
Yes
Can officers open locked container during consent search
No, they need separate permission
During a consent search, can an officer open a briefcase in the trunk by manipulating its combination lock
Yes
In consent vehicle searches, officers need separate permission to search beyond the (3)
Glove box, passenger compartment, and trunk
To enter a home in hot pursuit of a misdemeanor requires an additional emergency, such as
Potential violence, destruction of evidence or escape from the house
Should you enter a dwelling in hot pursuit of a misdemeanor if you know the suspect fled into his own home?
No
Should you enter a dwelling in hot pursuit of a misdemeanor suspect, if you have no information the suspect poses a risk of violence
No
Can you pursue a suspect into a dwelling in hot pursuit if the only offense is a civil infraction and refusing to stop for police?
No- failing to stop for police isn’t jailable
If the crime is oui alcohol, can you enter a home in hot pursuit to obtain a breath or blood sample
No
Can an officer enter a home if they discover an open door or other suspicious signs
Yes to investigate possible crime in progress
When entering a home to investigate a potential crime scene officers are not liable to the homeowner as long as they
Behave reasonably
Officers may enter onto private property to serve restraining order, but they need consent or exigent circumstances to actually enter:
The home
The police response to domestic violence must be evaluated in relation to the scene as it appeared to the officers ________
At the time
In domestic violence, a potential victim must be ______ in order to justify an exigent entry
At risk
What justifies police entry to deal with an unsupervised party or one where an adult is legally providing alcohol or marijuana
Safety risks along with potential destruction of evidence
Is there a social host law that forbids transferring marijuana to minors or allowing minors to consume marijuana on private property?
Yes just like alcohol
In order for officers to enter a dwelling for exigent circumstances officers must have probable cause and (3)
A real threat that violent will occur
Evidence will be destroyed
Or suspect will escape
Who can provide marijuana to minors on their property?
Parents and grandparents just like alcohol
Once a suspect knows police are involved he is motivated to (3)
Destroy evidence
engage in violence
try to escape
What is the minimum requirement for search incident to arrest
Probable cause. Don’t need formal arrest in order to search under search incident to arrest
In order to conduct a strip or visual body cavity search, police must have ________ their suspect possesses contraband or a weapon that might not be discovered during a manual search
Probable cause
Five recommendations for a safeguards to strip searches
Same gender
Private room
Investigating officers
Full nudity unnecessary
Emergency circumstances
Videotape
Strip searches must always be conducted in these ways (2)
Non-humiliating
Professional manner
A manual body cavity search of anal cavity involves (3):
Touching, probing or manipulating
If it strip search is done in an unprofessional or humiliating manner, what happens to the evidence?
Suppressed
Three best practices for objects in anal or general opening
- Transport, arrested to hospital and have medical clinician remove the object (should be done when officers are concerned the object might cause serious injury, if not removed by medical personnel)
- Request the arrested voluntarily remove the object.
- Obtain search warrant from judge.
For a strip search does consent removal eliminate the need for warrant
Yes
Direct observations provide a ______ required for a manual body cavity search warrant
High degree of probable cause
In a manual body cavity search warrant officers should include __________ because it provides the particularized need required by a judge to sign the warrant
How officers gave the subject the chance to remove the item but he refused
During a search incident to arrest the law states that officers may (3)
- Always search for weapons, regardless of reason for arrest
- Only search for evidence related to the crime arrested for
- Sees any other evidence found during the search for weapons or evidence related to arrest
A warrantless seizure of property, unrelated to an arrest must be supported by:
Probable cause
Search into arrest includes the body of the arrested, and the ______ even when handcuffed
Grabbing area
During a search incident to arrest the search extends to the area within arrestees reach to prevent his ability to (2)
Access a weapon or destroy evidence
The grabbing area is the area at time of _____ not search
Arrest
Case law declared that any _______ left in the possession of a suspect who is being arrested may be used as a weapon
Hard Object
If someone is arrested for a warrant for 209A violation and drugs in the past, can they be searched incident to arrest for evidence
No not for those crimes but they may be searched for weapons
If someone is under arrest for a warrant, and you find a container in their pocket, you shake the container and it sounds like pills are inside. Can you open it?
No
Would drugs seized at the time of the arrest on an outstanding drug warrant, be evidence of his possession, sale or distribution of drugs at the time of his drug event events
No
Someone is arrested on outstanding drug warrant. While searching them for weapons you remove a hard object from groin that turns out to be a pill container. Can you open the pill container?
You can open it under new search incident to arrest for evidence because most people do not keep prescription bottles in their groin. You cannot claim to open it as a weapon search.
Seizure of keys is justified if potential evidence or weapon, but not to:
Determine identity
Secure a cell phone only if there is ______ that it contains evidence
Probable cause
Police may move and arrested person for a ________ and secure area
Legitimate purpose
Police may ______ open a container to discover weapons and arrest in my
Immediately
In motor vehicles, the scope of a search incident to arrest extends only the:
Passengers compartment, never the trunk
Once a suspect is cuffed and in the cruiser, searching the passenger compartment can no longer be justified for
Safety or weapons. However, they may search the compartment if looking for evidence associated with the rest.
Vehicle search for evidence depends on:
The crime being investigated
