crim pro flashcards
For the fourth Amendment to apply, there must be an affirmative answer to:
- Was the search or seizure executed by a government agent?2. Was the search or seizure of an area or item protected by the 4th amendment?3. Did the government agent either (a) physically intrude on a protected area to obtain information; or (b) violate an individual’s reasonable expectation of privacy in a protected area or item?4. Did the individual subjected to the search or seizure have standing to challenge the government agent’s conduct?
The fourth amendment expressly protects individuals from unreasonable searches and seizures of their:
Persons, houses (cutilage), Papers, letters, and effects.
Unprotected Items:
Public Observation Generally Obliterates Fourth Amendment Protection. 1. Physical Characteristics2. Odors3. Garbage 4. Open Fields5. Financial Records 6. Airspace (public Airspace)7. Pin Registers
There are two ways in which searches and seizures by government agents can implicate an individual’s 4th amendment rights:
- Trespass based test: The agent physically intruded on a constitutionally protected area in order to obtain information. 2. Privacy based test: (more commonly used): The agent’s search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy.
To satisfy the privacy based test an individual must show:
- An actual or subjective expectation of privacy in the area searched or items seized; and 2. That the privacy expectation would be one that society recognizes as reasonable.
For a person to have standing…
an individual’s personal privacy rights must be invaded, not this of a third party.
How to determine whether a warrant is sufficient…
- Was the warrant issued by a neutral and detached magistrate?2. Is the warrant supported by probable cause and particularity?3. If not, did police officers rely on a defective warrant in good faith?4. Was the warrant properly executed by the police?
Probable cause requires proof of a…
fair probability that contraband or evidence of crime will be found in the area searched.
The sufficiency of an informant’s tip rests on:
corroboration by the police of enough of tipsters information to allow the magistrate to make a common sense practical determination that probable cause exists based on a totality of the circumstances.
To satisfy the particularity requirement, a search warrant must specify two things:
- The place to be searched and 2. The items to be seized
Good Faith Exception:
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Exceptions to Good Faith:
- The affidavit is so egregiously lacking in probable cause that no reasonable officer would have relied on it. 2. The warrant was so facially deficient in particularity that officers could not reasonably presume it to be valid. 3. The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding. 4. The magistrate who issued the warrant is bias in favor of the prosecution.
How to determine if the search warrant was properly executed by the police.
- Compliance with the warrant’s terms and limitation: In executing a warrant, officers are allowed to search only those areas and items authorized by the language of the warrant. 2. Knock and announce rule: Police ,must knock and announce their presence and their purpose before forcibly entering the place to be search, unless the officer reasonably believes that doing so would be- (a) futile, (b) dangerous, and/or (c) would inhibit the investigation.
In Maryland a search warrant must be executed within____
15 days…if not a new search warrant must be obtained.
In Maryland, can a judge issue a no-knock warrant?
No, judges may not issue a no-knock warrant.
Warrant requirement exceptions:
ESCAPIST1. Exigent Circumstances 2. Search incident to arrest 3. Consent 4. Automobiles 5. Plain View 6. Inventory 7. Special Needs 8. Terry Stop and Frisk
Three types of exigent circumstances:
- Evanescent Evidence: evidence that would dissipate or disappear in the time it would take to obtain a warrant. (Blood alcohol tests are different) 2. Hot Pursuit of a flying felon: Hot pursuit allows police officer to enter the home of a suspect or a third party to search for a fleeing felon. During hot pursuit any evidence of a crime discovered in plain view while searching for the suspect is admissible. 3. Emergency Aid Exception: Police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury.
Search Incident to Arrest Exception
- Arrest must be lawful2. Search must be contemporaneous in time and place with the arrest3. The police may search areas within the wingspan of the arrestee. (Includes the body , clothing, and any containers within the arrestee’s immediate control without regard to the offense for which the arrest was made.
Permissible Scope of Automobile searches incident to arrest
Police may search the passenger cabin including closed containers but not the trunk.
Secured versus unsecured arrestes as it pertains to automobile searches
Once an officer has secured an arrestee the officer may search the arrestee’s vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.
Consent exception:
- consent must be voluntary 2. Consent to search extends to all areas for which a reasonable officer would believe permission to search was granted (may be limited)3. If an office obtains consent to search from someone who lacks “actual” authority to grant it, the consent is still valid under the 4th amendment, provided the officer reasonably believed that the consenting party had actual authority.
Automobile exception
Police officers need probable cause to believe that contraband or evidence of crime will be found in he vehicle. If they have that, the officers may search the entire vehicle and they may open any package, luggage, or other container that may reasonably contain the items for which there was probable cause to search.
Pain View Requirements
- Police must be in a lawful place 2. Lawful access to the item searched3. The criminality of the item must be immediately apparent
Inventory searches
Commonly occur in two contexts: (1) Arrestees when they are booked into jail (2) Vehicles when they are impounded
Inventory searches are constitutional if three requirements are met:
- The regulations governing them are reasonable in scope. 2. If the search itself complies with the regs 3. The search is conducted in good faith.(motivated solely by the ned to safeguard the owner’s possessions and or to ensure officer safety.)
Terry Stop and Frisks…What is a terry stop?
It is a temporary detention or seizure for the purpose of investing suspicious conduct.
When are you seized for 4th amendment purposes?
An individual is seized for 4th Amendment purposes when, based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer questions.
In evaluating whether an individual has been seized during questioning by law enforcement, you should consider:
- Whether an officer brandishes a weapon, 2. The officer’s tone and demeanor when interacting with the person questioned, 3. Whether the individual was told she had the right to refuse consent.
When being pursued by an officer, an individual is seized only if
he submits to the officer’s authority by stopping or if the officer physically restrains him.
Three important traffic stop principles:
- In traffic stops, both the driver and the passengers are seized, such that either can challenge he legality of the stop. 2. In a traffic stop, the officer may, in her discretion, order both the driver and the passengers out of the vehicle. 3. Dog sniffs at traffic stops are permissible provided the sniff does not prolong the stop unreasonably.
MD rule with regard to traffic stops:
An alert to the detection of drugs in a vehicle by a K-9 officer establishes probable cause to search the vehicle, but does not establish PC to search a passenger in the vehicle.
What is a Terry Frisk?
It is a pat down of the body and outer clothing for weapons that is justified by an officers belief that a suspect is armed and dangerous.
What can you seize during a terry frisk?
If during a Terry frisk, an officer finds something she reasonably believes to be a weapon, it can always be seized. If, instead, the officer finds something she recognizes as contraband without manipulating the object, she can seize it as well.
Car Frisks
When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden.
Protective Sweep
When making an in home arrest, police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety.
What evidentiary standard applies to Terry stops and Frisks?
Reasonable Suspicion
What is reasonable suspicion?
Requires specific and articulable facts that inform an officers belief that criminal activity is present or afoot.
What evidentiary standard applies to protective sweeps?
Whenever officers are making an in-home arrest officers have the authority to look in areas adjoining the place of arrest from which an attack could be immediately launched. To justify a sweep in more remote areas, the arresting officers must have additional information sufficient to allow them to conclude that an individual who may threaten officer safety is present in the area swept.
Special Needs Doctrine concerns the needs of
law enforcement, governmental employers and school officials beyond a general interest in law enforcement.
Drug testing: The US SC has approved warrantless, suspicionless, drug tests in a variety of contexts including:
- Railroad employees, following an impact accident. 2. Custom agents responsible for drug interdiction; and 3. Public school children who participate in any extracurricular activities.
Search of Parolees:
warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole.
School Searches
Warrantless searches of the person and the effects of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is reasonable at its inception and is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Boarder searches:
Neither citizens nor non-citizens have any 4th amendment rights at the boarder with respect to routine searches of persons and effects.
