CRIM PRO Flashcards
4th Amedment
The 4th Amendment protects against unreasonable search and seizures.
Government Conduct
The search or seizure must have been conducted by a government agent or someone acting at the agent’s request.
Standing
An individual has standing to challenge the search or seizure if he had a reasonable expectation of privacy in the place searched or item seized.
No Reasonable Expectation of Privacy
Things held out to the public: 1) sound of one’s voice, 2) handwriting; 3) paint on the outside of car; 4) bank account records; 5) areas outside of home (barn); 6) garbage left out for collection; 7) land visible from plane; 8) smell of one’s car or luggage
4th Amendment - Arrests and Detentions
Arrests and detentions must be reasonable to be valid under the 4th Amendment.
4th Amendment - Seizure
Seizure occurs when under the totality of the circumstances, a reasonable person would not feel free to deny the officer’s request or otherwise terminate the encounter.
4th Amendment - Arrest
Arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation. Arrest must be based on probable cause - trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.
Warrant not required for arresting person in a public place, but must have a warrant for a non-emergency arrest of a person in his home.
- Felony - Officer may make a warrantless arrest of a person if he has PC to believe that suspect has committed a felony.
- Misdemeanor - Officer may make a warrantless arrest for a misdemeanor
4th Amendment - Stop and Frisk
Stop - Officers may stop a person without PC if he has reasonable suspicion supported by articuable facts (not merely a hunch) of criminal activity or **involvement in a completed crime. ** Detention will turn into arrest if other PC for arrest arises.
Frisk - If the officer has reasonable suspicion that the detainee is armed and dangerous, the officer may frisk - pat down outer clothing of detainee for weapons.
Plain Feel - Officer may reach into the detainee’s clothing and seize the item if he reasonably believes, based on plain feel, that it is contraband or a weapon, but may not manipulate clothing to get a better feel of item.
Officer may ask detainee to identify himself and arrest detainee for failure to comply with request.
4th Amendment - Automobile Stop
Officers may stop a vehicle if they have reasonable suspicion to believe a traffic law has been violated.
Auto stop constitutes a seizure of the driver and occupants so passengers have standing to challenge admissibility of evidence as fruit of unlawful seizure.
After a lawful auto stop, officer may order all occupants out of the vehicle in the interest of police safety. Officer may frisk the occupants and search the passenger compartments for weapons if officer reasonably believes the detainees are armed and dangerous.
4th Amendment - Pretextual Auto Stop
If an officer has PC to believe that a traffic law has been violated, the officer may stop the vehicle, even if his ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
Police Checkpoint
If special law enforcement needs are involved, police may set up roadblocks to stop cars without individualized suspicion that the driver violated a law. To be valid, the roadblocks must: 1) stop cars on the basis of a neutral articulable standard; and 2) primarily designed to serve purposes closely related to automobiles and roadway safety.
Checkpoints for general crime control purposes are unreasonable (i.e. contraband search).
Sobriety checkpoints are reasonable because they relate to the state’s interest in preventing accidents caused by drunk drivers and there is a minimum level of intrusion on an individual’s privacy.
4th Amendment - Deadly Force
There is a 4th Amendment seizure when officers use deadly force to apprehend a suspect, unless it is reasonable to do so under the circumstances (i.e. suspect poses an immediate threat to his own life and lives of others).
4th Amendment Warrant Requirement
Generally, a search must be pursuant to a warrant. A warrant must be: 1) based on PC; 2) issued by a neutral and detached magistrate; 3) supported by oath or affidavit; 4) state with particularity the place to be searched and items to be seized; and 5) executed without unreasonable delay.
PC:
- There must be PC to believe that seizable evidence will be found on the person or premises at the time warrant will be executed
- Informants – affidavit of PC based on informer’s tip must meet the “totality of the circumstances” test (include enough facts and circumstances to allow magistrate to make an evaluation that the info is trustworthy).
Supported by oath or affidavit:
- Search warrant issued on the basis of an affidavit will be held invalid if D establishes:
- A false statement was included in the affidavit by the officer
- The officer intentionally or recklessly included the false statement; and
- The false statement was material to the finding of PC
- Good Faith Exception – Evidence obtained by police in reasonable reliance on a facially valid warrant may still be used by the prosecution despite an ultimate finding that the warrant was not based on PC.
Search of 3rd Party Premises - A warrant may be obtained to search premises belonging to non-suspects, as long as there is PC to believe that evidence of someone’s guilt will be found there
Execution of Search Warrant
Knock and Announce Rule – police must knock and announce their purpose, and wait a reasonable amount of time for admittance, or be refused admittance before using force to enter the place to be searched. No announcement need to be made if officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would lead to destruction of evidence.
Scope of Search – is limited to what is reasonably necessary to discover the items described in the warrant. Police may seize and contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
Knock and announce rule violations will not result in a suppression of evidence that is otherwise properly obtained.
Search of Persons found on Premises – a warrant to search for contraband authorizes an officer to detain occupants in the immediate vicinity of the premises during the search, but does not authorize the police to search persons who were not named on the warrant. Also does not allow officers to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.
Wiretapping and Eavesdropping
Wiretapping constitutes a search under the 4th Amendment. A warrant to wiretap may be issued if: 1) there is PC; 2) the suspected persons involved in the conversations to be overheard are named; 3) warrant describes with particularity the conversations that can be overheard; 4) wiretap is limited to a short period of time; 5) wiretap is terminated when the desired information has been obtained; 6) return is made to the court, showing which conversations have been intercepted.
Speaker assumes the risk that the person to whom he is talking is a wired informant
