Crim Pro Extra

Question 1

When the police seek a warrant to search or arrest, the Fourth Amendment precludes issuance of the warrant absent a finding of

Answer 1

probable cause

Question 2

The probable cause requirement applies differently depending on whether a search or a seizure is involved. When the police conduct a search, the probable cause requirement demands that..

Answer 2

the police be able to show that the fruits, instrumentalities, or evidence of crime exist, and can be found at the place to be searched.

See Illinois v. Gates, 462 U.S. 213 (1983)

Question 3

When a arrest is involved, probable cause requires a showing that

Answer 3

a crime has been committed, and that the person to be arrested committed it.

See United States v. Watson, 423 U.S. 411 (1976).

Question 4

Probable cause as literally written requires to prove that..

Answer 4

that the fact is “more probable than not.”

Question 5

As applied, the requirement of probable cause demands proof

Answer 5

The courts make what they regard as a “practical, commonsense” decision about whether sufficient cause exists to permit a search or seizure that deals with “probabilities” rather than a precise test.

Question 6

The finding of probable cause must be

Answer 6

“particularized”

Question 7

There must be probable cause to believe that the person to be searched is in possession of illegal narcotics instead

Answer 7

The finding of probable cause must relate to the individual in question.

i.e. Even though there is a high level of drug activity on the street, it is unreasonable to conclude that everyone on the street is in possession of illegal drugs

Question 8

T or F: The fact that an individual is in a “high crime” area should not be considered in the probable cause determination.

Answer 8

False. It should.

In determining whether probable cause exists, courts focus on the “totality of the circumstances.”

While the fact that a suspect is in a high crime area is not enough by itself to satisfy the probable cause requirement, it is a “factor” to be considered in the “totality.”

Question 9

T or F: Even though a court may consider other factors, it should not be allowed to consider crime statistics in the probable cause determination.

Answer 9

False, it should.

In determining whether probable cause exists, courts focus on the “totality of the circumstances.”

Question 10

Suppose that a police officer has “reasonable cause” to believe that an automobile driver is in violation of the law by driving with a burnt out headlight at night.

The officer pulls the driver over and cites him for “defective equipment.” As the officer gives the driver his ticket, the officer asks the driver for permission to search the trunk. The driver refuses.

Consider whether the following statements are valid.

T or F: Since an honest, law-abiding, citizen has nothing to hide, and would cooperate with the police, the driver’s refusal to consent to the search gives the officer probable cause to search the trunk.

Answer 10

False.

individuals have a constitutional right to refuse consent, see Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the driver’s refusal to consent does not, by itself, give the officer probable cause to search the trunk.

Question 11

T or F: Probable cause would not exist after refusal of consent, unless there was additional evidence (e.g., after the officer asked for consent, and it was refused, he happened to notice drug paraphernalia on the seat of the vehicle).

Answer 11

True.

Question 12

Must a consenter be aware the they have the right to refuse consent in order for a search via consent to be valid under the 4th amendment?

Answer 12

False, it only needs to be voluntary. One need not have knowledge of the fact that they have the right to refuse consent for voluntary search.

Question 13

A police officer applies for a search warrant. In support of the warrant, a police officer offers an affidavit which states that he has “received reliable information from a credible person” to the effect that narcotics can be found at a suspect’s house. The affidavit also states that the officer “believes” that the informant’s information is correct.

Suppose that you are the magistrate assigned to decide whether a warrant should issue to search the suspect’s house. Based on these facts, is there probable cause to issue the warrant?

Answer 13

No. Probable cause did not exist because the allegations were inadequate to satisfy the probable cause requirement. The allegations were too vague about why the informant was credible and reliable.

Question 14

What is the test for evaluating informant testimony in making probable cause determinations?

Answer 14

Under this so-called Aguilar-Spinelli test, the following factors should be considered in evaluating informant testimony for purposes of the probable cause determination:

the magistrate must focus on whether there is evidence regarding the

1) informant’s veracity (or credibility), as well as regarding the

2) informant’s “basis of knowledge.”

In other words, how did the informant come by the information?

Aguilar-Spinelli does not require that the informant’s testimony be taken before a court reporter or that it be under oath.

Question 15

a police officer received a tip from an informant who had previously provided information to the officer.
Since the informant’s prior tips had proved accurate, the credibility prong of the Aguilar-Spinelli test was satisfied. However, the informant told the officer nothing about how he came by his information. As a result, if the basis of knowledge prong were strictly applied, it was not satisfied. However, the tip stated that a man named Draper had gone to Chicago the day before by train, and that he would return to Denver by train on one of two specified mornings carrying three ounces of heroin. The informant also provided detail regarding how Draper would be dressed.

A police officer went to the train station on the specified mornings, and found a man matching the description dressed as the informant said that he would be dressed. What did the Draper Court hold regarding whether probable cause existed?

Answer 15

The Court held that probable cause existed, notwithstanding a lack of information regarding the informant’s basis of knowledge, because the informant provided a detailed tip that was verified by an independent police investigation.

Question 16

What about anonymous tips, how does the court find probable cause?

Answer 16

Corroborated statements by an unknown informant can amount to probable cause. The Court replaces the Aguilar-Spinelli test with a “totality of circumstances” test, but retains the Aguilar-Spinelli standards as factors to be considered in the “totality.”

Question 17

Can the police rely on “canine sniffs” alerts to establish probable cause?

Answer 17

Yes. the prosecution can establish the canine’s reliability through his performance during training.

Canine perfection is not required to establish probable cause.

Question 18

two police officers stop John Jay’s vehicle for speeding. While one officer is checking Jay’s driver’s license and registration, and issuing a citation, another officer walks a drug sniffing dog around the vehicle. The dog, who is trained to focus only on certain types of drugs (marijuana, heroin and cocaine) alerts to the driver’s side door. On the assumption that they have probable cause to believe that there are illegal drugs in the vehicle, the police search the vehicle. They do not find any of the drugs that the dog is trained to detect. However, they do find crystal meth, and arrest Jay for possession.

In the ensuing criminal proceeding, Jay claims that the police did not have probable cause to search his vehicle because the drug sniffing dog was not reliable as evidenced by the false alert. Did the officers have probable cause to search Jay’s vehicle?

Answer 18

the fact that the police were unable to find any of the drugs for which the dog was trained to alert does not deprive the police of probable cause to search the vehicle.

Additionally, the fact that there might have been a “false alert,” the dog might still be deemed reliable based on his prior performance during field training.

Question 19

what is required for a warrant to be validly issued?

Answer 19

1) That the warrant was issued by a “neutral and detached” magistrate.

2) That “probable cause” exists to believe that the fruits, instrumentalities or evidence of crime can be found at the place to be searched.

3) the warrant must particularly describe “the place to be searched, and the person or things to be seized

Question 20

If a search was undertaken by a private individual without governmental involvement or encouragement does this trigger 4th amendment?

Answer 20

No. The Fourth Amendment only applies when there is “state action.”

Question 21

What transforms a private individual search to a state action?

Answer 21

1) if the police encouraged the person to conduct the search, and offered him an incentive for undertaking it

2) If there is a fact that a person was on the police payroll, and paid on a contingency fee basis, creates a high level of governmental encouragement and involvement.

Question 22

What about if the fruits of the search by the private actor, and the private actor offered to turn it over to the police in exchange for a reduced sentence in a pending criminal prosecution”)

Answer 22

By the time the evidence is turned over to the police, and the deal is made, the search is already complete. Therefore, it does not trigger 4th amendment.

Question 23

For 4th amendment to be triggered there must be?

Answer 23

a search or a seizure.

Question 24

When is there a search within the context of the 4th amendment?

Answer 24

a search occurs when the government transgresses on an individual’s reasonable “expectation of privacy.”

And that expectation is deemed reasonable by society

Question 25

For a person to be seized “within the meaning of the Fourth Amendment..

Answer 25

A reasonable person under the circumstances would have believed that he was not free to leave.

Question 26

What is considered a seizure in the context of 4th amendment?

1) A police officer subjects a suspect to a custodial arrest and takes him to the police station.

2) A police officer, who is working a rock concert, engages in idle chit-chat with a concert-goer.

3) Following a robbery at a nearby convenience store, a police officer approaches an individual on the street with his guns drawn and yells “Halt! Police!” The individual stops.

4) A police officer turns on his lights and pulls over a person who is driving an automobile on a public street.

Answer 26

1) yes, custodial arrests are seizure

2) chitchatting - is not a seizure

3) police showing of the threat of force (such as guns) and demand are seizure

4) police turn on their lights and pull over a person driving an automobile on a public street is a seizure. When a police officer turns on his/her lights and pulls a driver over, no reasonable person would feel free to leave in this situation.

Question 27

What are the requirements on the issuance of a warrant

Answer 27

the warrant must be issued by a neutral and detached magistrate, must be based on probable cause, and must particularly describe the place to be searched and the things to be seized

Question 28

A police officer sees a car weaving down the street under the control of an obviously intoxicated driver.

The officer pulls the car over (a “seizure”), arrests the driver (another “seizure”) and searches the vehicle. Since the Fourth Amendment contains a warrant requirement, can it be said that warrantless searches (in particular the warrantless search of the vehicle) are necessarily unconstitutional?

Answer 28

The Fourth Amendment only prohibits “unreasonable” searches and seizures.

The Fourth Amendment does not literally require a warrant as a precondition to a valid search.

Question 29

T or F: Before a warrantless search will be upheld, the Court must conclude that it is reasonable to proceed without a warrant.

Answer 29

True.

The Fourth Amendment imposes a “warrant preference” which suggests that searches with a warrant are generally preferred over warrantless searches, but that warrantless searches will be upheld if it is “reasonable” to proceed without a warrant.

Question 30

What are considered reasonable searches and are exempt from the warrant requirements?

Answer 30

1) the search incident to legal arrest exception

2) the automobile exception

3) the stop and frisk exception

4) exigent circumstances exception

5) the inventory exception

Note: there is no “convenience exception”

Question 31

Some exceptions to a warrant requires a showing of:

Answer 31

“probable cause” or “reasonable suspicion”

Question 32

Do all exceptions require a showing of “probable cause” or “reasonable suspicion”?

Answer 32

No.

Question 33

A showing of “cause” is not required for various exceptions to the warrant requirement, these are?

Answer 33

1) inventory exception. “When a vehicle is legally detained, a police officer can conduct an inventory search including search of closed containers inside an automobile, conducted pursuant to an established inventory policy.”

2) Consent, but it must be valid

3) Border checkpoints and state roadblocks checkpoints

Question 34

Exceptions require proof of “cause” in order to search

Answer 34

1) automobile exception - requires a showing of probable cause to believe that the automobile to be searched contains the fruits, instrumentalities, or evidence of a crime.

2) stop and frisk exception - requires that police have reasonable grounds to believe that criminal activity is afoot and that the suspect is armed and dangerous

3) exigent circumstances exception - requires proof of an exigent situation (e.g., absent immediate police action, evidence will disappear or be destroyed).

Question 35

Are there any remedies for Fourth Amendment Violations conducted by police against a person?

Answer 35

1) the individual may try to invoke the so-called “exclusionary evidence rule.

the individual will move to have the evidence excluded from a subsequent criminal prosecution because of the Fourth Amendment violation. Id. If the defendant prevails, the state may proceed with the criminal prosecution, but must rely only on other evidence (evidence that was constitutionally obtained)

Question 36

Proper issuance of a warrant requires that:

Answer 36

1) a proper judicial officer
2) be presented with a sworn
3) statement of facts that is
4) sufficiently recent
from which one can conclude there is probable cause to believe either:
- evidence or seizable items (e.g., contraband) will be found at a specific place (a search warrant), or
- a specific person committed a specific crime for which they can be arrested (an arrest warrant).

Question 37

Information used to determine probable cause can be in a wide variety of forms:

Answer 37

written statements,
oral statements,
sworn written statements (affidavits), or other warrants.

It cannot be simply the general knowledge of the issuer, since the issuer must independently evaluate the application for the warrant.

Question 38

Supreme court cases

Answer 38

fact pattern + rule

Question 39

A package belonging to the Jacobsens (defendants) was damaged by a forklift at a Federal Express warehouse. Federal Express employees, in compliance with a corporate policy concerning insurance claims, opened the package to inspect its contents. On discovering that the package contained a white, powdery substance wrapped in several layers of plastic bags, the Federal Express employees repackaged the substance and called the Drug Enforcement Administration (DEA). DEA agents removed the powder from the box and conducted a field test that identified the powder as cocaine.

Is a law-enforcement officer required to obtain a warrant before conducting a chemical field test of a substance suspected to be an illegal drug?

Answer 39

1) the Federal Express employees’ initial search of the package did not violate the Jacobsens’ Fourth Amendment rights because the search was performed by private parties and not by government agents.

2) In reopening the package and removing the white powder, the government agents did not violate the Jacobsens’ privacy rights because they were invited to inspect the package by the Federal Express employees who had already opened it.

3) The only actions the agents took beyond those previously taken by the Federal Express employees were to remove a small amount of the white powder from the package and conduct a field test

4) The test could reveal only whether the white powder was cocaine. It could not identify substances other than cocaine. Congress has decided that there is no legitimate interest in the private possession of cocaine. Thus, the Jacobsens had no reasonable expectation of privacy in the possession of cocaine, the test was not a search within the meaning of the Fourth Amendment, and the agents were therefore reasonable in conducting the test without a warrant.

Question 40

Does the harmless error rule applies to confessions saught in violation of the 5th amedment?

Answer 40

For a conviction to be upheld in spite of it being caught by a coerced confession, the state must prove that the admission of the confession was a harmless error. In other words, the state must show that admitting the confession did not contribute to the conviction.

Question 41

Is a judicial determination of probable cause after an arrest is avaliable?

Answer 41

A judicial determination of probable cause made within 48 hours of arrest is generally sufficiently prompt.

Question 42

Does the presence of drugs in a car give rise to probable cause to arrest any occupant of the car who had knowledge about the drugs and exercised dominion and control over them?

Answer 42

The presence of drugs in a car gives rise to probable cause to arrest any occupant of the car who had knowledge about the drugs and exercised dominion and control over them.

Question 43

Does the offense establishing probable cause have to be closely related to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest?

Answer 43

The offense establishing probable cause does not have to be closely related to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest. It is enough that the police officer has a probable cause that a crime was committed.

Question 44

When an officer has probable cause to believe a traffic violation has occurred, is the Fourth Amendment violated if his primary reason for pulling over and detaining the motorist is not to enforce the traffic laws?

Answer 44

When there is probable cause that a traffic offense has occurred, the officer’s subjective motives for detaining the motorist do not invalidate the officer’s actions under the Fourth Amendment.

If the defendant believes he has been targeted by the police because of his race, as Whren suggests, his remedy lies in the Equal Protection Clause, not the Fourth Amendment

Question 45

Can a mistake of law give rise to the reasonable suspicion necessary to uphold a warrantless seizure under the Fourth Amendment?

e.g.

Answer 45

A mistake of law can give rise to the reasonable suspicion necessary to uphold a warrantless seizure under the Fourth Amendment.

A traffic stop constitutes a seizure of the vehicle and its occupants. The police officer makes a traffic stop based on the officer’s factual assumptions as to how the car is operating. To satisfy the Fourth Amendment, ““these assumptions need not be correct, so long as they are reasonable.””

Question 46

Can a mistake of law give rise to the reasonable suspicion necessary to uphold a warrantless seizure under the Fourth Amendment?

e.g.

Answer 46

A mistake of law can give rise to the reasonable suspicion necessary to uphold a warrantless seizure under the Fourth Amendment.

A traffic stop constitutes a seizure of the vehicle and its occupants. The police officer makes a traffic stop based on the officer’s factual assumptions as to how the car is operating. To satisfy the Fourth Amendment, ““these assumptions need not be correct, so long as they are reasonable.””

Question 47

Is evidence lawfully seized incident to an arrest if police reasonably but mistakenly believed that the arrestee was a different person who they had probable cause to arrest?

Answer 47

Evidence is lawfully seized incident to an arrest if police reasonably but mistakenly believed that the arrestee was a different person who they had probable cause to arrest. A key aspect of reasonableness under the Fourth Amendment is “sufficient probability, not certainty.”