Crim Pro: Search and Seizure Flashcards
1
Q
Overview
A
Fourth Amendment prohibits state actor from engaging in unreasonable search or seizure.
2
Q
Search and Seizure reasonable if:
A
Authorized by: 1. valid warrant or 2. warrant exception and 3. execution in a reasonable manner. Evidence obtained pursuant to unreasonable search or seizure may be suppressed.
3
Q
Search and Seizure Analysis:
A
- State Action?
- Search (REP, physical intrusion) or Seizure (possessory interest; free to leave)?
- Warrant (PC, particularity) or Warrant exception?
- Execution (reasonable; knock and announce)?
- Suppression?
4
Q
Police (on or off duty) breaks into home to find pot. Is this state action?
A
Yes– doesn’t matter if cop is off duty
5
Q
Police asks neighbor to break into home and turn over pot. Is this state action?
A
Yes– asking someone to do something is turning that person into agent of police.
6
Q
Neighbor breaks into home and turns pot over to police. is this state action?
A
No– police had nothing to do with it.
7
Q
What is a “search?”
A
1) Invasion of Reasonable Expectation of Privacy.
2) Physically intruded into constitutionally protected area to obtain information.
(protected areas: persons, houses, papers, and effects)
8
Q
What is REP?
A
REP = a. Subjective expectation + b. Objectively reasonable (by society) Likely no REP if information: a. exposed to public b. transferred to third party who turns over to police
9
Q
Pot in attic seen by police through window from sidewalk. REP?
A
NO– plain view
10
Q
Pot growing in attic without windows detected by police thermal imager. REP?
A
Yes
11
Q
Pot hidden in privacy fenced backyard, discovered by police climbing over. (“curtilage”) REP?
A
Yes
12
Q
Pot hidden in privacy fenced backyard, discovered by police helicopter. REP?
A
No
13
Q
Pot hidden by trees deep inside farm field, discovered by police trespassing. (“open fields”). REP?
A
NO
14
Q
Drug paraphernalia in trash on curb, opened by police. REP?
A
NO
15
Q
Public location of car by visual surveillance. REP?
A
NO
16
Q
Public location of car by attached GPS device. REP?
A
Yes
17
Q
Email or letter to friend, intercepted. REP?
A
YES
18
Q
Email or letter to friend, turned over by friend.REP?
A
NO
19
Q
Financial records turned over by banker. REP?
A
NO.
20
Q
Drug dog sniff (sreet, checkpoint, airport). REP?
A
NO
21
Q
Drug dog sniff on porch. REP?
A
YES
22
Q
What is “Seizure?”
A
a. Things: TEST - meaningful interference with possessory interest. Ex. detention, dispossession, destruction.
b. Persons: TEST - exercise of authority which restrains freedom of movement, under which reasonable person would not feel free to leave. Ex. terry stops, arrest.
23
Q
Sidewalk conversation without restraining force or show of authority. Seizure?
A
NO– can still walk away
24
Q
Sidewalk conversation at insistence of police blocking way. Seizure?
A
Yes
25
Standing
TEST: Search or seizure may be challenged only the person was actually searched or seized.
26
Driver challenges stop of car.
Passenger challenges stop of car.
Who has standing?
Both do.
27
Driver or owner challenges car search.
Passenger challenges car search.
Who has standing?
Driver or owner has standing.
| Passenger does Not
28
Driver challenges search of passenger purse.
Passenger challenges search of passenger purse.
Who has standing
Driver does NOT have standing.
| Passenger HAS standing.
29
Overnight guest challenges search of guest area.
| Afternoon guest challenges search of guest area.
Overnight guest HAS STANDING
| Afternoon guest DOES NOT HAVE standing.
30
Warrant or Warrant Exception
A search or seizure must be authorized by
(1) valid warrant or
(2) warrant exception
31
Warrant Requirements:
1. Probable Cause
2. Particularity
3. Oath or affirmation and
4. Detached and neutral magistrate
32
Warrant Exceptions
```
Plain View
Consent
Exigent Circumstances
Automobile
Public arrests,
Search incident to arrest, inventory
Terry, Special needs.
```
33
Stackability:
May stack warrant and warrant exceptions on top of each other to expand authority.
34
Scope
May not exceed scope of authority under warrant or exception(s).
35
Probable Cause
TEST: Fair probability, reasonable grounds, or reasonably trustworthy information sufficient for prudent person to conclude:
a. Crime has been or is being committed by person to be seized, or
b. Evidence of criminality in place to be searched.
Note: hearsay and anonymous tips may support (though no necessarily establish) PC
36
Particularity
TEST: Sufficiently definite for police to identify persons, places, or items to be searched or seized with reasonable certainty.
NOTE: Names and addresses sufficient but not necessary;
Particularly must be on FACE of warrant or through incorporated affidavit.
37
Oath or Affirmation
TEST: Police must give information supporting warrant under oath
38
Detached and Neutral Magistrate
TEST: NO stake in outcome, not rubber stamp
(1) ex. $5 to approve warrant.
NOTE: need not be judge or lawyer.
39
Plain View
TEST: Police may search or seize an item they seen in "plain view" if:
a. authorized to be there, AND
b. PC item is connected with criminality
NOTE: authority may derive from warrant, warrant exception, or public location of vantage point
40
Plain feel
Police may also search or seize an item they feel during an authorized search (e.g. terry frisk) if feel gives rise to PC
41
Searching home for stolen HDTV pursuant to warrant, police see drug paraphernalia in closet, which they seize. Valid?
Yes -- TVs can be hidden in closets
42
Searching home for stolen HDTV pursuant to warrant, police see drug paraphernalia in drawer, which they seize. Valid?
NO-- TV can't be hidden in drawer--outside scope.
43
Searching home for stolen HDTV pursuant to warrant, police see checkbook in closet, which they flip through and seize after finding incriminating transactions. valid?
NO! Outside scope
44
Consent - First party consent:
Voluntary under totality of circumstances.
Factors: police actions and suspect's background.
Note: Ignorance of right to refuse not fatal.
45
Consent - Third-Party Consent:
Voluntary +
a. Actual authority to consent based on joint access or control OR
b. Police had reasonable belief in authority to consent
46
Consent - Objecting Co-Occupants:
Police may not search home over present objection co-occupant.
47
Police search bedroom based on permission of roommate who sleeps in another bedroom. Valid?
NO-- can only search common areas.
48
Police search home when wife at door gives permission but husband objects. Valid?
NO-- present and objects
49
Police search home with consent of wife, after objecting husband is arrested and removed. Valid?
Yes--no longer present.
50
Exigent Circumstances
TEST: Reasonable belief for police to believe delay in obtaining warrant would result in:
a. evidence destruction
b. danger; or
c. flight
or reasonable basis to believe in need to render
d. emergency aid
NOTE:
Still need PC of criminality. The lesser the crime and greater the intrusion the less likely for courts to find exigency.
Police - created exigency okay as long as creation does not violate 4A.
51
Police pursue into home suspect whom they have PC committed felony. Valid?
YES
52
Police search home for suspect of fine-only traffic offense. Valid?
No
53
Police smell pot in hallway, knock on door, hear shuffling and flushing, enter. Valid?
Yes
54
Automobile
TEST: PC that any area of car to be searched (including containers) harbors evidence of criminality.
55
Police search trunk based on PC car contains stolen HDTV. Valid?
Yes
56
Police search glove compartment based on PC car contains stolen HDTV. Valid?
No
57
Public Arrests
NO warrants required for arrests in general public.
a. Felonies: public + PC
b. Misdemeanors: Public, PC, + Committed in presence of officer.
Warrants required for arrests in private unless exception applies (eg. exigent circumstances)
a. Arrestee's home: arrest warrant
b. Third-party home: search warrant + arrest warrant.
58
Search Incident to (Lawful) Arrest (SITA)
Person: Contemporaneous search of a) person, b) lunge area; and c) container therein for weapons or evidence.
Cars: search only if a) reasonable belief that arrestee (occupied to recent occupant) may get back to car) eg. not secured in squad car), or reasonable belief car contains evidence of crime of arrest (cf. DUI with failing to signal)
Home: during completion to arrest, may conduct protective sweep (cursory visual inspection) for accomplices in
a. adjoining rooms automatically, and
b. other rooms if reasonable suspicions of danger.
59
Inventory
TEST: within scope of reasonable inventory procedure to protect valuables, police, and public mazy inventory contents of
a) possession at booking after lawful arrest, and
b) automobiles after lawful impoundment.
1) DNA swab at booking permissible for serious offense.
60
Terry: Terry Stop
Required:
Reasonable suspicions suspect engaged in criminal activity.
Allowed:
Brief detention and questioning to confirm or dispel suspicion
*reasonable suspicion must be based on specific articulable facts
*RS is less than PC more than mere hunch
61
Terry: Terry Frisk
Required
Lawful Terry Stop + Reasonable suspicion suspect armed and dangerous
Allowed
Patdown of outer clothing + one-lunge area for weapons.
*May not frisk for evidence
* May feel ambiguous object to determine whether weapon.
*May reach in and seize object if frisk confirms suspicion of weapon of weapon or gives rise to PC of evidence.
62
Police stop man who fled on approach in high crime area. Valid?
Yes
63
Police stop suspect whom anonymous tip claimed will be wearing plaid at bus stop (corroborated) and possessing drugs (uncorroborated). Valid?
NO
64
Police stop car based on broken tail light and hunch transporting drugs. Valid?
Yes (pretext okay)
65
Police awaiting drug dog detain car with broken tail light longer than reasonably necessary to issue citation. Valid?
NO
66
Police frisk validly stopped drug suspect with identified bulge in pocket. Valid?
Yes
67
Police frisk validly stopped drug suspect without any sign of weapon. Valid?
No
68
Special Needs
Balancing Test: If primary purpose is NOT related to criminal investigation may search of seize if government interest outweighs privacy intrusion
Common Purposes: public health & safety
Tip: The more random, regulated, and dispersed the program, the more likely to be reasonable.
69
Drug testing of a student athlete suspected of illegal use. Valid?
No
70
Random drug testing of students in extracurricular activities. Valid?
Yes
71
Drug and alcohol testing of railroad workers involved in train wrecks. Valid?
Yes
72
Traffic checkpoint to protect public drunk drivers. Valid?
Yes
73
Traffic checkpoint to catch drug traffickers. Valid?
NO
74
Customs checkpoints to stop importation of contraband. Valid?
Yes
75
Execution
Test: Search or seizure must be executed reasonably.
Before: MUST knock and announce presence and purpose before entering premises (under warrant or exception) unless: reasonably grounds to believe: a) dangerous; b) futile, or c) destruction.
During: May take reasonable steps to secure premises during authorized search or seizure including:
a. Temporarily detaining people at scene,
b. ordering occupants out of car.
76
Suppression: Exclusionary Rule
Evidence obtained as result of unconstitutional conduct is inadmissible against individual whose rights were violated as the fruit of poisonous tree.
77
Exclusionary Rule Exceptions: Procedural
1. Impeachment (cross-examination)
2. Grand jury procedure
3. Parole Hearing
4. Civil Proceeding
78
Exclusionary Rule Exceptions: Doctrinal
1. Knock and announce violation
2. Reasonable reliance on facially valid warrant (later found to be lacking PC)
3. Clerical records by court employees in maintaining records
4. Error by police in maintaining records
a. Exclude if intentional , reckless, grossly negligent, or reurring or systemic negligence.
79
Not fruit of poisonous tree
a. Independent source
b. Inevitable discovery
c. attenuation
80
Police arrest suspect without PC. Search incident to arrest yields drugs. Suppress?
Yes
81
Officers search home illegally but do not seize drugs; others obtain warrant to search home and seize drugs without reliance on prior search. Suppress?
No. Independent source exception
82
Officers find body was result of illegal interrogation; others would have found through ongoing "grid" search. Suppress?
NO. Inevitable discovery exception.
83
Police search home with warrant ultimately found lacking PC in close case. Suppress?
No. Reasonable good faith.
84
Illegally arrested suspect on bail voluntarily return to station days later to confess. Suppress?
No. Attenuation.
85
Traffic stops led to arrest and seizure of drugs on suspect after police clerk erroneously found arrest warrant by searching wrong name. Suppress?
No Clerical error
86
ATF execute warrant authorizing search of ranch for weapons and seizure of each. Weapons seized. Suppress?
Yes. Lacks PC
