Crim Pro -- 4th Amendment - Search and Seizure

Question 1

For D to assert a 4th Amendment challenge, what must he show?

Answer 1

1. Government conduct

2. Reasonable Expectation of Privacy

Question 2

To show GOVERNMENT CONDUCT, what must D show?

Answer 2

Police/government were involved in the search.

Question 3

To show REASONABLE EXPECTATION OF PRIVACY, what must D show?

Answer 3

1. D had an ownership or possessory interest in the place searched or items seized.

Question 4

In what instances do you ALWAYS have a

REASONABLE EXPECTATION OF PRIVACY (and therefore standing for a 4th amendment challenge)?

Answer 4

1. OWN the premises
2. LIVE ON the premises
3. OVERNIGHT guests

Question 5

Do you have a REASONABLE EXPECTATION OF PRIVACY (and therefore standing for a 4th amendment challenge), when you OWN THE PROPERTY SEIZED?

Answer 5

Only if you have R Expectation of Privacy in the place searched or item seized.

Question 6

When do you NEVER have a R Expectation of Privacy?

Answer 6

If you HOLD IT OUT TO THE PUBLIC EVERYDAY.

e.g. your voice, style of handwriting, bank account records

Question 7

What are the requirements for a VALID WARRANT?

Answer 7

1) based on
PROBABLE CAUSE
(fair probability that contraband/Ev of a crime will be found in the area searched.)
+

2) stated with
PARTICULARITY
(states the placed searched & items to be seized)

issued by DETACHED MAGISTRATE

Question 8

If a WARRANT is based on info from an INFORMANT, it will be sufficient when…

Answer 8

TOTALITY OF CIRCUMSTANCES
Factors:
1. Informant’s credibility
2. Basis of Knowledge

Question 9

Can a warrant be based on a tip from an anonymous informant?

Answer 9

In part

Question 10

When is “No Knock Entry” permitted in executing a search warrant

Answer 10

when EXIGENT CIRCUMSTANCES exist:

when Knocking & Announcing would be:

1. Dangerous
2. Futile
3. Would Inhibit Investigation

Question 11

Define PROBABLE CAUSE

Answer 11

Probable Cause is:

a FAIR PROBABILITY that CONTRABAND/ EVIDENCE of a crime will be found in the area searched.

Question 12

What if there is no valid search warrant – then what?

Answer 12

ask:

1. GF defense to a valid search warrant?
2. Fall under an Exception to the Warrant Requirement?

Question 13

What is the Good Faith Defense to a lack of valid search warrant?

What are the exceptions?

Answer 13

RULE: an Officer’s GF reliance on a search warrant overcomes PC or Particularity defects.

Exceptions:

1. Affidavit is SO LACKING IN PROBABLE CAUSE, no R officer would have relied on in
2. Affidavit is SO LACKING IN PARTICULARITY, no R officer would have relied on it.
3. Police LIED TO or MISLED magistrate
4. Magistrate is BIASED (financial incentive or actual malice)

Question 14

What is the EXCLUSIONARY RULE?

Answer 14

Evidence obtained pursuant to an invalid search (in violation of the 4th A) is inadmissible.

Question 15

What is the FRUITS OF THE POISONOUS TREE doctrine?

Answer 15

Generally, not only must illegally obtained evidence be excluded, but also all evidence OBTAINED OR DERIVED FROM the exploitation of that evidence. (They are “fruits of the poisonous tree.”)

Question 16

What is the Community Caretaker Exception?

Answer 16

It justifies a WARRANTLESS SEARCH if the officer faces an EMERGENCY threatening the health or safety of an individual or the public.

It is an exception to ALL warrantless searches, not just autos.

Question 17

Under a Terry Stop and Frisk, if you feel an object, what determines whether you may FURTHER SEARCH? (that is, remove the object and then examine it)?

Answer 17

If you can IDENTIFY what it is

Question 18

What are the requirements for doing a search incident to a lawful arrest?

Answer 18

• PROBABLE CAUSE
• CONTEMPORANEOUS to the arrest
• Limited to suspect’s WINGSPAN

Question 19

Where does someone have a REASONABLE EXPECTATION OF PRIVACY?

Answer 19

If you have an ownership or possessory interest in the place searched or the item seized.

Question 20

What is the purpose for Search Incident to a Lawful Arrest?

Answer 20

To protect the police officer. We want to make sure there is nowhere the suspect could reach and obtain a weapon.

Question 21

What is the Automobile Exception?

Answer 21

Exception to Warrant requirement for a search.

When there is a warrantless search of an automobile, where the officers detained but did not arrest the occupant of the automobile, that’s allowed so long as:

i) the search is limited to those areas where the SUSPECT COULD HAVE CONCEALED WEAPONS, and
ii) the officers have a R BELIEF the SUSPECT IS DANGEROUS.

Question 22

SEARCH WARRANT:

What must an affidavit of Probable Cause be supported by?

Answer 22

An Affidavit of Probable Cause must be supported by the BELIEF that SEIZABLE EVIDENCE will be found on the premises to be searched.

Question 23

14th Amendment attack on Identification?

Answer 23

Under the 14th A, an accused may attack an identification as denying Due Process when it is
i) UNNECESSARILY SUGGESTIVE, and there is SUBSTANTIAL LIKELIHOOD of MISIDENTIFICATION.

Question 24

4th A – Investigatory Detentions

Answer 24

Police may briefly detain a suspect if they have for investigative purposes if they have REASONABLE SUSPICION supported by ARTICULABLE FACTS.

Question 25

4th A – Automobile Stops

Answer 25

Police may stop a vehicle if they REASONABLY BELIEVE the stopped vehicle violated a traffic law

Question 26

4th A – SILA (Search Incident to a Lawful Arrest) – in a car

Answer 26

If arrestee is secured, police may not search interior of vehicle without a warrant, unless police REASONABLY BELIEVE evidence of the offense for which the person was arrested may be found in the vehicle.

Question 27

4th A – Automobile Exception

Answer 27

If police have PROBABLE CAUSE to believe the vehicle contains evidence of a crime or contraband, they may search the interior of the vehicle without a warrant.

Question 28

5th A – re-initiating questioning after Miranda invoked

Answer 28

once the Miranda rts are invoked, the police may not resume questioning about any crime unless ACCUSED INITIATES resumption of questioning.

Question 29

Confession in violation of Miranda – how may it be used at trial?

Answer 29

To IMPEACH accused’s testimony.

–However, where confession was preceded by invoking right to counsel, confession must have been VOLUNTARY AND INTELLIGENT.

Question 30

Evidence of Crime:

Auto Exception
vs
SILA

Answer 30

Auto Exception:
Probable Cause – Whole Vehicle

SILA:
Reasonable Suspicion – Passenger Compartment?

Question 31

Auto Exception:

Evidence of a Crime
vs
Weapon

Answer 31

Evidence of a Crime: Whole Vehicle

Weapon: Where Weapon could be Concealed

Question 32

Auto Checkpoint Stops – when may police do this?

Answer 32

So long as they

1) stop cars on the BASIS of a NEUTRAL articulable standard
2) are MOTIVATED by a particular PROBLEM RELATED TO AUTOMOBILES and their mobility.

Question 33

Is a FORCIBLE warrantless entry into the home to make a felony arrest constitutional?

Answer 33

Absent an EMERGENCY, No.

Warrantless searches of a home are PRESUMPTIVELY unreasonable.

Question 34

If a person found on the premises is NOT NAMED in the warrant and PROBABLE CAUSE TO ARREST HER does not exist, when may the police search her for the objects named in the search warrant?

Answer 34

Only if the police have PROBABLE CAUSE that the person has the NAMED OBJECTS on HER PERSON.