Crim Pro Flashcards
What is the plain view doctrine?
Seizure doctrine authorizing an officer to seize an item discovered in plain view.
Showing:
1) Officer is lawfully in a place where evidence is viewed.
2) The incriminating character of the item must be readily apparent and established by PC (no manipulation permitted).
3) Officer must have lawful access to the item itself.
Rationale:
Property interests are not as weighty as privacy interests and warrantless seizures are not presumptively unreasonable.
Scope:
Seizing items in plain view cannot exceed the place where the officers are permitted to search. Police may not engage in 4th Am. activity in making a determination on the contraband.
- Inadvertence is not a requirement; the subjective intent of the officer is irrelevant.
- Essentially, if you satisfy the PC standard, then you’ve satisfied this standard
What is required for an anticipatory warrant?
PC that certain evidence will be located in a specific place at some future time.
There must be PC that a triggering condition will occur AND if the condition occurs that the evidence will be at a particular place.
*Officer must have PC to believe the evidence/person is in the place to be seized at the time of execution.
PC to search is…
PC is a certain quantum degree of likelihood equated to a fair probability/substantial chance; viewed objectively based on the TOC.
PC to search requires a substantial chance/fair probability that contraband or evidence of crime will be found in place to be searched.
- Subjective motivation of officer is irrelevant.
- Staleness: item to be seized must be presently in the particular location to be searched. Passage of time not alone dispositive but considered in the PC analysis. (Blood search = applied; search for body = probably does not apply)
- Not evaluated retroactively
*Hearsay can be considered: Gates Test - TOC (sliding scale)
-Veracity or reliability
-Basis of knowledge
(The two-prong test of Spinelli is still used as the touchstone, they just are no longer given independent significance. Evaluate them together)
*Hunch = insufficient for PC or RS
What is a search?
An intrusion into a protected area. It does not necessarily need to be a physical intrusion; an area is protected if it is one where a privacy interest exists.
SCOTUS set out a two-prong test to determine if a 4th Amendment privacy interest exists: 1) does the individual have an actual expectation of privacy, and 2) is the expectation one that society is prepared to consider reasonable?
Normative safety valve: if loss of privacy interest would shock the conscience, objectively unreasonable.
Examples of unreasonable expectation of privacy:
- Curtilage that is not treated as a private area (consider proximity, enclosure, nature of use, precautions to exclude others) - TOC
- Open fields - BL Rule
- False friends (BL Rule based on AOR: no expectation that what is shared will be kept secret)
- Exposed to public (BL rule; no privacy interest in phone numbers or email addresses)
- Navigable airspace (BL rule)
- Technology readily available to the general public
- Luggage (but not when manipulated in an exploratory manner - that is a search)
- Surveillance (but not via GPS attachment - that is a search w/in the traditional trespass theory)
*Searches are per se unreasonable w/out PC and presumed unreasonable w/out a warrant.
When is a warrant required?
-All searches (w/out qualifying exception)
-An arrest in the arrestee’s home
Requires arrest warrant and PC to believe that the arrestee is home at the time of execution.
**protect privacy and sanctity of the home.
-An arrest in a 3d party’s home
Requires search warrant to invade 3d party’s home and PC to believe that the arrestee is there.
**protect privacy and sanctity of the home of 3d party; arrestee has no standing to complain here
What is required for a valid warrant?
-PC (certain quantum degree of likelihood equal to fair probability/substantial chance) that the person or item to be seized/searched is or was involved in a crime
-Supported by an oath or affirmation
-Presented to a neutral and detached magistrate judge
-Stated with particularity
(conclusory statements are insufficient; must state enough facts to allow the judge to draw his own conclusions about the existence of PC)
-Properly executed (non-textual requirement added by the court)
1) Stay w/in scope of warrant;
2) K&A unless RS that K&A would be dangerous or futile.
*No rule for how long of a wait is required (20 sec. sufficient for drugs).
*It is OK if police create the exigency as long as it is reasonable.
*A violation of K&A will not alone exclude evidence.
3) PC that arrestee/item is presently in the place to be searched (or will be present upon triggering event: anticipatory warrant)
*Based on officer’s discretion
What is the rule re. a warrantless search and when will one be upheld as reasonable?
Warrantless searches are presumptively unreasonable; warrantless seizures are NOT presumptively unreasonable. Property interests are not as weighty as privacy interests. Burden is on the gov’t to prove by RS that an exception applies.
A warrant may not be required for: • SITA (as applied to person and vehicle); • Exigent circumstances; • Vehicle and container searches; • Inventory; • Consent; and • Plain view seizure.
Suppression is only required if there is an unreasonable search, thus if one of the exceptions to the warrant requirement applies, the evidence is admissible.
*Consider rationale, showing, and scope.
What is a SITA applied to a person?
BL Rule: officer has absolute authority to search a custodial arrestee.
Showing:
- Custodial arrest based on PC
- Search is contemporaneous to the arrest (not too remote in time or place of arrest)
- If in arrestee’s home, a valid arrest warrant and PC that the person is home at the time the warrant is executed be/c it preserves privacy and sanctity of the home.
Rationale:
Safety of officers, prevent destruction of evidence and escape, and lesser intrusion be/c liberty is already breached by the arrest.
Scope: Arrestee’s person, containers (open/closed), area w/in immediate control.
*Cell phone data excluded: rationale doesn’t apply be/c not related to officer safety or preservation of evidence
What is a SITA applied to a vehicle?
TOC standard: officer has authority to search a vehicle when:
Showing:
- Custodial arrest based on PC
- Search is contemporaneous to the arrest (not too remote in time or place of arrest)
- Arrestee was recent occupant of the vehicle
- Arrestee might access the vehicle OR RS that the vehicle contains evidence of the offense leading to arrest
Rationale:
Safety of officers, prevent destruction of evidence and escape, and lesser intrusion be/c liberty is already breached by the arrest.
Scope: Passenger compartment of the vehicle including unlocked containers (open and closed). However, safe-type lock that is easily accessible prob. not w/in the exception.
- Cell phone data excluded: rationale doesn’t apply be/c not related to officer safety or preservation of evidence
- If arrestee is secured and away from vehicle, consider standard vehicle exception to the warrant requirement
What is an exigent circumstance?
TOC standard: officer has authority to search when
Showing:
There is PC to search or arrest and a qualifying exigency (more than mere inconvenience to the officer). Determined by looking objectively at the likelihood gravity (seriousness and imminence) of the harm.
Examples: hot pursuit of a felon, destruction of evidence, emergency, or injury.
Rationale:
- The exigency renders the process of obtaining a -warrant unreasonable (destruction/fleeing).
- Grave and imminent harm that can only be addressed with prompt search.
- Persons who have just committed a felony are more likely to resort to force.
Scope:
Until the exigency is addressed or reasonably determined to no longer exist.
May only search where reasonably necessary to extinguish the exigency (e.g., no looking thru mail).
PC to arrest is…
PC is a certain quantum degree of likelihood equated to a fair probability/substantial chance; viewed objectively based on the TOC.
PC to arrest requires a substantial chance/fair probability that the individual has or is in the process of committing a crime.
- Subjective motivation of officer is irrelevant.
- Not evaluated retroactively
*Hearsay can be considered: Gates Test - TOC (sliding scale)
-Veracity or reliability
-Basis of knowledge
(The two-prong test of Spinelli is still used as the touchstone, they just are no longer given independent significance. Evaluate them together)
*Hunch = insufficient for PC or RS
What is the vehicle exception to the warrant requirement?
BL Rule: No warrant is needed to search vehicle on public property, open field, or property of a 3d party.
Showing:
PC to search the vehicle (readily mobile w/ its own locomotive power and used for transportation purposes). If the vehicle is a residence, it is still a vehicle if it meets the above description.
Rationale: Presumed exigency (flight and destruction of evidence) and BLR that privacy interest in a vehicle is diminished by perverse regulation.
Scope:
May search on site or at the station house – at the discretion of the officer but the search cannot be indefinitely delayed.
Officer can search any place within the vehicle that the officer has PC to search (if limited to container, then only search container). This includes all accessible parts, including the passenger compartment, trunk, and containers. (Acevedo)
Police may order the occupants out of the vehicle while searching it. (Wilson)
However, may not search the passengers’ bodies or items worn by them without specific proof that they are in possession of contraband.
*unoccupied vehicles on private property/curtilage require a warrant but this might be threatened.
What is the container exception to the warrant requirement?
BL Rule: No warrant is needed to search container INSIDE a vehicle on public property, open field, or property of a 3d party.
Showing:
- PC to search the container and
- container is in a vehicle that is readily mobile w/ its own locomotive power and used for transportation purposes.
- ownership of container is irrelevant
Rationale: Presumed exigency (flight and destruction of evidence) and BLR that privacy interest in a vehicle is diminished by perverse regulation.
Scope:
The container or type of container the officer has PC to search
What are an officer’s options if they have PC to search but no warrant or exception?
- Obtain a telephonic warrant
- Temporarily secure (seize) the premises and prevent anyone from entering while seeking a warrant. (McArthur case was for 2hrs)
o Limited value here because can’t do anything about the person inside.
o Cannot keep someone out of their own residence but can accompany the occupant.
Officers may also detain occupants of a residence while they search, for their protection and the protection of evidence (Summers).
What is the inventory search exception to the warrant requirement applied to a vehicle?
BL Rule: no PC or warrant required.
Showing:
Lawfully impounded and inventoried pursuant to a valid SOP (proxy for PC).
Rationale:
Community caretaking function, protect property, protect against false claims, safety concerns. Non investigatory: no reason for warrant.
Scope:
All accessible areas including the passenger compartment, trunk, and containers. Prob unreasonable if damage occurs.
May search on site or at the station house – depends on valid SOP.
What is the inventory search exception to the warrant requirement applied to a person?
BL Rule: No PC or warrant required.
Showing:
Lawful arrest and prospective confinement, and inventory is performed pursuant to a valid SOP (proxy for PC).
Rationale:
Verify ID, protect officers and arrestee and others in confinement, protect property, protect against false claims. Non investigatory: no reason for warrant.
Scope:
Arrestee’s person, possessions, containers, clothing, can include strip/body searches. Must be w/in valid standard operating procedures. 4th Amendment does not require least intrusive means.
What is the consent exception to the warrant requirement?
TOC standard: No PC or warrant needed.
Showing:
Consent must be voluntarily obtained.
Determined by a reasonable person standard considering factors such as:
-police conduct;
-subjective characteristics of D (subjective vulnerabilities);
-knowledge of the right to refuse;
-external influences on the consenter’s will;
-whether suspect is in custody (length of detainer).
*Subjective intent of officer is irrelevant.
Rationale:
Consent searches are important for effective law enforcement. Catch bad guys / AOR. Also serves to protect innocent parties because it can dispense with officer suspicions.
Scope:
Wherever it is objectively reasonable to believe that consenter would allow search to go.
*Consent may be withdrawn, but if another basis to continue the search arises beforehand, search may continue accordingly.
Can a co-occupant give sufficient consent under the exception to the warrant requirement?
Yes, a co-occupant’s voluntary consent is legally sufficient to waive the ABSENT co-occupant’s rights and evidence discovered in the search is admissible in a trail against the co-occupant.
TOC standard
Showing:
- Voluntariness
- Actual OR apparent authority to consent based upon mutual use, joint access/control, substantially active relationship to the premises (not fleeting or limited contacts).
Invalidated by present and objecting co-occupant.
- Trickery is permitted; may wait for objector to leave
- Even if it appears unreasonable that consenter has authority, if they do, the search is reasonable.
Rationale:
AOR; expectation of privacy is diminished
Scope:
Wherever it is objectively reasonable to believe that consenter would allow search to go.
*Consent may be withdrawn, but if another basis to continue the search arises beforehand, search may continue accordingly.
What does the 4th Amendment protect?
The 4th Amendment protects against unreasonable governmental searches and seizures of one’s person, house, papers, and effects.
When is a person seized under the 4th Amendment?
A person is not seized under the 4th Amendment unless and until he yields to the authority of the police, or the police use physical force, that would make a reasonable person believe he is not free to leave or end the encounter.
Unanswered commands and mere tailing are insufficient to satisfy a seizure.
Fingerprinting at stationhouse: seizure
Fingerprinting at terry stop for ID purposes only: not a seizure (but must have RS that suspect is the person to be ID’ed and dispatch)
May police make an arrest at the threshold of a home w/out a warrant?
TOC standard; Yes, if the access to the arrestee is unobstructed and unimpeded per Santana.
Can a passenger be searched without a warrant?
No, people have a greater privacy interest in their person. Passengers (and their containers on their person) cannot be searched absent PC and a warrant.
When is the gov’t justified in conducting a warrantless search for “special needs” purposes?
When there is an important gov’t interest different in kind than general crime control. There is no individualized suspicion required for this 4th Amendment search.
Factors to consider reasonableness:
- Minimal intrusiveness or privacy interest
- Sufficiently weighty govt interest (compelling)
- Would requiring individualized suspicion frustrate purpose govt trying to achieve (consider any alternative modes of accomplishing the objective)
- Primary purpose is something other than general crime control (interest is different in kind)
Examples:
School search - officials can search based on RS the search will reveal evidence of the students violation of law or school rules.
Checkpoint - hwy safety; borders; emergency purposes (thwarting an imminent terrorist attack)
Drug Testing Employees - warrant would frustrate the gov’t purpose because of dissipation of alcohol or drugs creates the exigency.
Border searches - authority to remove, disassemble and reassemble vehicles fuel tank. International law: important aspect of sovereignty to be able to protect its borders in a way it sees fit. Gov’t authority is at its zenith at the border.
Must an officer inform a suspect that they have the right to withhold consent to search?
No, but the suspect’s knowledge of such a right is a factor to be considered under the TOC analysis for voluntariness.
Best practice for police to ask for consent because it serves as a fallback for invalid warrants or risk of a lack of PC.
Voluntary consent is not present where the police request consent and infer that if consent is not given, a warrant will be used to search anyway.
What is a reasonable suspicion?
More than an inarticulable hunch but less than fair probability. Subjective intent of the officer is irrelevant.
RS is a second 4th Amendment norm to test reasonableness determined by a TOC analysis balancing the intrusion on 4th Amendment interests against promotion of legitimate gov’t interests.
Factors to consider: Unprovoked flight and a high crime area time of day character of neighborhood officer in uniform direction/speed of flight Tip corroborated by descriptive and predictive nature including individual police work
What is a terry stop?
A limited seizure based on a reasonable and articulable suspicion that criminal activity was afoot (a person was involved or is wanted in connection with a completed felony; prob. only applies to serious crimes).
A less serious intrusion upon liberty balanced against important gov’t interests such as police safety and detecting and preventing crime.
What is a terry frisk?
A limited search consisting of a pat down based on a reasonable and articulable suspicion that the suspect is armed and dangerous.
A less serious intrusion upon privacy balanced against important gov’t interest of police safety.
The sole justification of the search is officer safety. If, however, an officer discovers contraband while searching for weapons, he may seize it, provided its criminal nature is immediately apparent without tactile manipulation.
When is an anonymous tip deemed reliable for 4th Amendment purposes?
When it is descriptive and predictive.
Reliability established through independent police work (observations and whether the tip predicted future events = tends to support veracity and basis of knowledge).
What is a de facto arrest?
When a temporary seizure rises to the level of an arrest. It is unreasonable to remove a person forcibly from their home or other place where they are entitled to be and take them to the stationhouse.
Requires PC or a warrant be/c seizures was so similar to an arrest it will be treated as such.
An officer can only remove person to the stationhouse with PC, consent, or RS with an exigency such as person is suspected terrorist.
Can an officer take fingerprints on site?
SCOTUS dicta suggests that fingerprinting on site is permissible if it doesn’t delay a terry stop.
Officer must have RS to believe the fingerprinting will match the suspect and call for dispatch.
What is the permissible scope of a terry stop?
A terry stop is not too long in duration if officers diligently and reasonably pursue a means of investigation that is likely to confirm or dispel the officer’s suspicion quickly during which time it is necessary to detain the suspect.
Includes stop and identify statutes.
TOC (consider any conduct by D that unreasonably delays or prolongs the detention)
Unrelated investigations are tolerable so long as they do not prolong the detention. (dog sniff at traffic stop)
There is no BL rule – even 5 minutes can be too long. 20 min in an airport was reasonable.
Can you terry stop an inanimate object (containers/luggage)?
Yes, with RS that criminal activity is afoot with that object.
Scope: if you can do it to a suspect during a Terry detention, you can do it to an inanimate object during a Terry detention. If you cant do it to a person during a Terry stop, you cant do it to an inanimate object during a Terry stop.
Factors to consider in the balancing analysis:
1) Of what import was it that D was traveling separately :reduced liberty interest if traveling with the object, not so much if traveling separate, but same impact on privacy and property interests.
2) Movement of luggage into a police cell. Two views:
- Police cannot move object just as police cannot move a person to the stationhouse;
- Police may move object be/c not the same concern of coercion that there is when moving a person.
3) Duration of the detention. How long was it and was it within the reasonable scope (DILIGENT & NOT UNREASONABLY PROLONGED) (90 min. deemed too long when officers could have had narcotics dogs ready when passenger arrived)
Is a dog sniff a search under the 4th Amendment?
Of a home or curtilage, yes.
Otherwise, no. Much less intrusive than a typical search and too limited in manner and content.
Dog sniff may result in PC to search under TOC standard - consider reliability of the dog.
Can you terry stop/frisk a vehicle?
Yes, with RS that the driver/occupant is involved in criminal activity and/or armed and dangerous.
Scope
May search where readily accessible (driver’s person and passenger compartment including containers) limited to those areas in which a weapon may be placed or hidden.
May seize contraband discovered through lawful frisk of a vehicle – like plain view doctrine in search incident to arrest or vehicle search.
Gov’t need not use the least intrusive means.
