Crim Pro - Search/Seizure & Warrants Flashcards
For search/seizure, who must be doing something?
Search/Seizure must be done by a Gov’t Agent/Official OR by someone acting at the Govt’s direction
Search
Search = a Gov’t search** of a **location (that has an enclosure) where you have a reasonable expectation of privacy
Open Fields Doctrine
= a location that’s an open area where one has NO reasonable expectation of privacy is NOT a search
E.g., police in helicopter fly over field and see Benny is growing marijuana
Probable Cause
→ to conduct a Search, Police must have PROBABLE CAUSE -AND- WARRANT (in general)
“Probable Cause” = a reasonable person would conclude it is more probable than not that a crime has taken place
What do Police need to conduct a Search?
→ to conduct a Search, (in general) Police must have:
PROBABLE CAUSE
- -AND-*
- a WARRANT*
Warrant
→ to conduct a Search, Police must have PROBABLE CAUSE -AND- _WARRANT_ (in general)
RULE: For a Warrant to be VALID, it must…
(1) be issued by a neutral & detached magistrate
(2) facts must be fresh(not out-of-date - e.g., facts aren’t 10 years old)
(3) be specific** regarding the **persons OR places to be searched
(4) Police cannot exceed warrant’s scope
What happens if Police have Probable Cause to search house but no Warrant?
→ unconstitutional – evidence Police find will be INADMISSIBLE
(but there are some exceptions…)
Knock & Announce
= typically, Police must “knock and announce” – BUT a Search will still be valid IF they have a Warrant
Informants
= Police CAN rely on info from reliable Informants for Probable Cause
**to determine whether an Informant is “reliable”, look to the Totality of the Circumstances (i.e., all the info the Informant provided + any other available info …Informant’s identity doesn’t need to be disclosed to magistrate)
Plain View
= during a lawful Search, Police CAN Seize any stuff that is in plain view
**BUT, at time Police find what they’re looking for, the Search must STOP - but as Police exit they CAN continue to Seize anything in Plain View
If Police conduct an illegal Search and then arrest Defendant based on what was found, can Defendant get the indictment dismissed?
→ NO, an illegal Search by itself will NOT automatically dismiss an indictment
Protective Sweep
= Police may ONLY broaden search to find additional criminals IF for safety AND Police have evidence there are other criminals present
Consent
*EXCEPTION to Warrant Requirement
Consent = a person has ownership/control OR apparent authority over the property AND voluntarily consents to Police’s search
*if two people are co-occupants of a property & both present AND one of them refuses to consent, THEN Police CANNOT search
*if only ONE co-occupant is present → he CAN refuse
*if a co-occupant is NOT present → he CANNOT refuse (e.g., via phone call)
Search Incident to Lawful Arrest
*EXCEPTION to Warrant Requirement
Search Incident to Lawful Arrest = if Police lawfully arrests a person, then Police MAY search that person AND his wingspan
E.g., pockets, briefcase
Search Incident to Lawfully Arresting a Car’s Occupant
*EXCEPTION to Warrant Requirement
= when a person is lawfully arrested while in his car, Police may search car’s passenger compartment (glove box) IF EITHER:
(A) occupant is unsecured (e.g., not handcuffed/restrained) -OR-
(B) Police have r_easonable belief_ there’s evidence of CRIME OF ARREST in the car