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(2) facts must be fresh(not out-of-date - e.g., facts aren’t 10 years old)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
Inventory Search
*EXCEPTION to Warrant Requirement
= once arrested Person and/or Car are at Police Station, the Police CAN search the Person / Car (i.e., take inventory of all property that was on the person and in the car)
Exigent Circumstances
*EXCEPTION to Warrant Requirement
= when Police have reasonable belief that evidence may be Lost OR Destroyed
Automobile Stop for Traffic Violation
*EXCEPTION to Warrant Requirement
= if Police stops Driver for traffic violation (speeding, ran red light, etc.), then Police CANNOT search the Car**, **glove compartment**, OR **trunk – UNLESS there’s evidence of another crime
e.g., speeding Driver reeks of alcohol, bloodshot eyes, slurring words
Automobile Stop for Probable Cause
*EXCEPTION to Warrant Requirement
= if Police stops Driver for probable cause that Car is carrying contraband (e.g., car matching Amber Alert description), then Police may search ENTIRE Car
Border Search
*EXCEPTION to Warrant Requirement
= at US international border, Police can search WITHOUT a Warrant
Search Outside the US
*EXCEPTION to Warrant Requirement
= US Gov’t Agents / Officials MAY search you on foreign land
Police Dog Sniff
*EXCEPTION to Warrant Requirement
= a Police Dog sniffing for contraband in a Public Place is NOT a search, so do NOT need Warrant
Stop & Frisk
*EXCEPTION to Warrant Requirement
STOP = Police can Stop person IF he has reasonable suspicion that “criminal activity is afoot”
*just b/c Police can Stop doesn’t mean he can also Frisk → separate rule…
FRISK = Police can Frisk person IF he has reasonable belief person is armed & dangerous
Automobile Checkpoints
*EXCEPTION to Warrant Requirement
= car checkpoint stops are allowed IFpurpose is closely related to dangers posed by car’s mobility (e.g., drunk driving) ANDPolice use a generic, uniform method for stopping cars (e.g., Police stopping every 10th car)
