Crim Pro - Search and Seizure Overview

Question 1

What are the four global issues for search and seizure?

Answer 1

(1) Whether a search or seizure is governed by the fourth amendment?
(2) Whether a search or seizure conduct with a warrant satisfied 4th Amendment Requirements?
(3) Whether a search or seizure conducted without a warrant satisfies 4th Amendment requirements; and
(4) The extent to which evidence obtained through a search or seizure that violates the fourth amendment is nonetheless admissible in court?

Question 2

What four questions must be answered affirmatively for the search or seizure to be governed by the fourth amendment?

Answer 2

(1) Was the search or seizure executed by a government agent?
(2) was the search or seizure of an area of item protected by the 4th Amendment?
(3) Did a government agent either (a) physically intrude on a protect area or item to obtain information; or (b) violate an individual’s reasonable expectation of privacy in a protected area or item?
(4) Did the individual subject to the search or seizure have “standing” to challenge the gov’t agent’s conduct?

Question 3

Who constitutes as a gov’t agent for purposes of a search or seizure?

Answer 3

(1) On or Off Duty Publicly Paid Police
(2) Private Citizens if they are acting at the direction of the police
(3) Private security guard, but only if theya re deputized with the power to arrest.
(4) Public School Administrators.

Question 4

What area or items are protected by the 4th Amendment?

Answer 4

(1) Persons
(2) Houses including the “curtilage”
(3) Papers (personal correspondence)
(4) Effects [Personal belongings]

Question 5

What items are unprotected because theya re sufficiently public?

Answer 5

(1) Paint scrapping on the outside of your car
(2) Account Records held by a bank
(3) Air space
(4) Garbage left at the curb for colelction
(5) Voice
(6) Odors
(7) Handwritings
(8) Open Fields

All are knowingly exposed to 3P

Question 6

What are the two ways a goverment agent can implicate an individuals 4th amendment rights?

Answer 6

(1) Physically intrude on a constitutionally protected area in order to obtain information; OR
(2) Search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy

Question 7

How does a search or seizure of a constitutionally protected area violate an individual’s reasonable expectation of privacy?

Answer 7

An individual must show:

(1) an actual or subjective expectation of privacy in the area searched or items seized; AND
(2) that privacy expectation was “one that society recognizes as reasonable”
* presumptively unreasonable under the 4th amendment when police use a device that is not in public use to explore details of home that officers could not have known without physical intrusion (i.e. thermal heat scanning)

Question 8

When does a individual have “standing” to challenge the gov’t agent’s conduct?

Answer 8

An individual’s PERSONAL privacy rights must be invaded, not those of a third party.

Example of where personal privacy rights are not invaded:

• search of car when you are a mere passanger.
• Use of someone else’s residence solely for business purposes

Question 9

When does you have “automatic standing” in Massachusetts?

Answer 9

Individual has automatic standing where possession of the seized evidence is an essential element of the crime and the evidence was taken from a HOME or an AUTOMOBILE.

Question 10

What four questions must be asked to determine if a search or seizued conduct pursuant to a search warrant satisfies 4th amendment requirements?

Answer 10

(1) Was the warranted issued by a neutral and detached magistrate?
(2) Is the warrant support by probable cause and particularity?
(3) If Not, the defective warrant enforceable?
(4) Was the warrant properly executed by the police?

Question 11

When is a warrant NOT issued by a neutral and detached magistrate?

Answer 11

A judicial officer ceases to be sufficiently “neutral and detached for 4th amendment purposes when her conduct demonstrates bias in favor the prosecution?

Question 12

When is a warrant supported by probable cause and particularity? [MBE]

Answer 12

Probable cause requires proof of a “fair probability” that contraband or evidence of crime will be found in the area search.

To satisfy the particularity requirement, the search warrant must specify two things:

(A) the place to be searched AND

(B) the items to be seized

Question 13

What is the Massachusetts standard for Probable Cause?

Answer 13

MA probable cause requires evidence that establishes a “substantial basis” that criminal evidence “may be reasonable expected to be located in the place to be search at the time the search warrant issues.”

Question 14

Can police rely on an anonymous informant tip to obtain a warrant? [MBE]

Answer 14

Yes, but the sufficiency of the tip rests on corroboration by the police of enough of the tipster’s information to allow the magistrate to make a “common sense practical” determination that probable causes exists based on a totality of the circumstances.

Question 15

What standard does Mass apply for a confidential informant?

Answer 15

MA reject the totality of the circumstance approach and uses the stricter Aguilar-Spinelli two-prong test.

Prosecution must establish the information’s:

(1) basis of knowledge; and
(2) Reliability [circumstance indicate the informant is credible or information reliable]

Independent police corroboration may make up for deficiencies in one or both prongs

Question 16

When is a defective search warrant enforceable [federal standard]? [And four expections to the standard]

Answer 16

Fed: An officer’s “good faith” overcomes constitutional defects in probable cause and particularity, unless one of four exception applies.

Exceptions to “Good Faith” Doctrine:

(a) Affidavit supporting the warrant application is so egregiously lacking in probable cause reasonable officer would have relied on it.
(b) Application is so facially deficient in particularity that an officer could not reasonably presume it to be valid.
(c) Affidavit relied upon by the magistrated contains knowing or reckless falsehoods that are necessary to the P Cause finding.
(d) Magistrate is biased in favor the prosecution.

Question 17

When is a defective search warrant enforceable under Mass. law?

Answer 17

MA does not follow the “good faith” doctrine.

In MA, evidence obtained under a defective search warrant is excluded from P’s case in chief only if const’l violation was “substantial and prejudicial”.

ALL Defects in probable cause are substantial and prejudicial. [Same standard does not apply for defects in particularity.]

Question 18

Was the search warrant properly executed by the police? [Must comply with two steps]

Answer 18

(1) Officers executing the warrant must comply with its terms and limitations; AND
* Can only search those areas and items authorized by the warrant.
(2) Officers executing the warrant must comply with the “knock and announce rule.”

Must knock and announce unless reasonably believe it to be futile, dangerous, or would inhibit the investigation.

Question 19

What is the additional requirement for police in MA to properly execute a search warrant?

Answer 19

Must have a copy of the warrant IN HAND!!

Question 20

Is the warrantless search through which criminal evidence was gathered valid under any of the eight exceptions to the warrant requirement?

Answer 20

(1) Exigent circumstance
(2) Search Incident to arrest
(3) Consent

(4) Automobile
(5) Plain View

(6) Inventory
(7) Special Needs
(8) Terry “Stop and Frisk”

Question 21

What are the three types of Exigent Circumstances when police can conduct a warrantless search?

Answer 21

(1) Evanescent evidence - evidence that would dissipate or disappear in the time it would take to get a warrant.
(2) “Hot Pursuit of a Fleeing Felon” - Enter suspects or third parties home and see evidence in plain view - admissible against the suspect.
(3) “Emergency Aid” Exception - May enter a residence without a warrant where there is an objective reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury.

Question 22

What are the limits to a search incident to arrest?

Answer 22

(1) The arrest must be lawful!
(2) Search must be contemporaneous in time and place with arrest.
(3) Limited to individuals wingspan and area’s within arestee’s immediate control.

Question 23

What about the search of an automobile incident to a custodial arrest?

Answer 23

Permissible scope: Interior cabin including closed containers, but NOT the trunk.

However, once the arestee is secured, officer can only search the arestee’s vehicle if he has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.

MA - Can look at a arestee’s recent call list if related to the crime for which the arrest was made.

Question 24

What is the standard and scope of a consent to search?

Answer 24

Standard: Consent must be voluntary and intelligent.

Scope: Consent to search extends to all areas for which a reasonable officer would believe the search was granted.

Consent still valid even if person lacked actual authority if officer reasonably believed that consenting party had actual authority.

Question 25

What about consent for shared premises?

Answer 25

Any residence can consent to common areas, but if co-tenants disagree -> dissenting party rules.

Question 26

What is the standard for the “automobile exception?

Answer 26

Police need probable cause to believe that contrabrand or evidence of crime will be found in the vehicle.

They can search entire vehicle and any contain that may reasonably contain the item for which they have probable cause.

Rationale: Vehicles are mobile and less er expectation of privacy.

Question 27

What are the three requirements for the plain view exception?

Answer 27

(1) Lawful access to the place from which the item can be plainly seen;
(2) Lawful access to the item itself; AND
(3) Criminality of the item must be immediately apparent.

Question 28

When are inventory search constitutional?

Answer 28

(1) Regulations governing them are reasonable in scope;
(2) Search itself complies with those regulations; AND
(3) Search is conducted in good faith; motivated solely by the need to safeguard the owner’s possessions and/or to ensure officer safety.

Question 29

One additional Massachusetts requirement for inventory searches?

Answer 29

Closed containers cannot be searched if the written regulations governing inventory search do not specifically mention them.

Question 30

What are the five categories of “special needs” warrantless searches that have been founded constitutional?

Answer 30

(A) Drug testing

(b) Parolees - acceptable as a condition of parole.
(c) School searches - so long as they are reasonable at its inception and not excessively intrusive in light of the age, sex of the student and nature of the infraction.
(d) Broader searches - neither citizens or non-citizens have any 4th amendment rights with respect to border searches.
(e) Non-law-enforcement primary purpose test: If the primary purpose is to gather criminal evidence for general use by law enforcement then it is not covered under the special needs doctrine.

Question 31

What is the Massachusetts law on urine test for drugs by state or local gov’t officials?

Answer 31

Random urine tests are prohibit by gov’t officials absent consent or reasonable suspicion unless the state can prove a “substantial gov’t interest.

Question 32

When are you seized for pruposes of the 4th amendment?

Answer 32

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.

Factors to consider:

(i) Does officer brandishes a weapon
(ii) what is the officer’s tone/demeanor
(iii) Was the individual told she has the right to consent?

In MA - Police pursuits constitute a seizure.

For MBE - an individual is seized by a police pursuit if he submits to officer’s authority by stop or the officer physically restrains him.

Question 33

When may an officer order the occupants out of a vehicle in MA?

Answer 33

Officer must identify concerns such as officer safety and suspicion of criminal activity.

Question 34

When must a traffic stop end in MA?

Answer 34

In a routine traffic stop, police inquiry must end when the drive produces a valid license AND registration.

Question 35

What can you seize in a Terry Frisk?

Answer 35

Officer can always seize an object that the officer reasonably believes to be a weapon.

AND officer can seize any object that they recognize as contraband so long as they do not MANIPULATE THE OBJECT.

Question 36

What evidentiary standard applies to Terry Stops and Frisks?

Answer 36

Reasonable suspicious (less than probable cause

Requires specific and articulable facts that inform an officer’s belief that criminal activity is present. [Objective Standard]

For frisk, specific and articulable facts that suggest suspect is armed and dangerous!

An informant tip can satisfy the standard if it contains predictive information, corroborated by the police to establish the informant’s reliability.

Question 37

What is the evidentiary standard applied in “protective sweeps”?

Answer 37

When making an in-house arrest, officers have the authority, without probable cause or reasonable suspicion to look in areas enjoining the place of arrest from which an attack could be launched.

To go beyond enjoining areas, must have additional facts sufficient to conclude their safety may be threatened.

Question 38

To what extent can prosecutors use evidence gathered in an unconstitutional search and seizure against the defendant in court?

Answer 38

Exclusionary rule: Evidence, physical or testimonial obtain in violation of a federal stautory or constitional provision is inadmissible against the individual whose rights were violated.

Question 39

Four limits on exclusionary rule

Answer 39

May be used to impeach the defendant’s testimony on cross-examinaiont

Failure to comply with the “knock and announce” rule does not require supression of evidence that is subsequently discovered.

For police error, the erroneous conduct must be deliberate, reckless, or grossly negligent.

Reasonable mistakes: Does not apply if failure was based on an officer’s reasonable mistake.

Question 40

When can fruit of the poisonous tree be admitted and three methods of accomplishing this result?

Answer 40

Prosecutor must show a break in the causal link between the original illegal and the criinal evidence that is later discovered. Three Methods:

• Independent source - source that is distinct from original illegality.
• Inevitable Discovery - necessarily would have been discovered through lawful means.
• Attenuation - Derivative evidence admitted where the passage of time and intervening events “purged the taint” of the original illegality and restore the defendant’s free will.

Question 41

What is required to meet the inevitable discovery rule in MA?

Answer 41

Prosecution must prove with great specificity and details that discovery was certain as a practical matter and the availability of the doctrine depends on the severity of the constitutional violation and if law enforcement acted in bad faith.

Question 42

What are the four major requirement for a valid wiretap warrant?

Answer 42

(1) Suspected persons: Warrant must name the suspected person whose conversation are to be overheard.
(2) Time: Wiretap must be for a strictly limited time period.
(3) Crime: Must be a probable cause that a specific crime has been committed.
(4) Conversations: Warrant must describe with particularity the conversation that can be overheard.

Question 43

What is the “unreliable ear” doctrine?

Answer 43

If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th amendment claim, you assume the risk that the other party will not keep your convo private.

MA - Unlawful to willfully engage in electronic surveillance of a conversation in a private home with consent of only one party.