Criminal Procedure Flashcards
What does the fourth amendment protect against?
Protects the people from unreasonable searches and seizures.
- When police act pursuant to a warrant based on probable cause, their conduct is presumptively reasonable. This presumption of reasonableness is rebutted only if the defendant can show a defect in the warrant or warrant process.
- When police conduct a seizure or search without a warrant based on probable cause, their conduct is presumptively unreasonable and violates the Fourth Amendment unless the fact pattern indicates an established exception to the warrant and/or probable cause requirement is triggered by the situation.
What is the definition of a seizure and when is a person seized?
A seizure is indicated by government action that results in a “meaningful interference” with a possessory interest.
When police interaction with a person would indicate to a reasonable person in that situation that they would not feel free to leave or terminate the police encounter, the individual has been seized.
-This is normally indicated by either police applying physical force to the individual or a police show of authority followed by submission.
a search occurs when police seek to find evidence and either:
1) physically trespass on an individual’s “person, papers, home, or effects (chattel property),” even if that property is exposed to the public; or
• This “investigatory trespass” of a “Person, Papers, Home, or Effect” qualifies as a Fourth Amendment search (thus triggering reasonableness requirement) because it intrudes upon a protection enumerated in the very text of the amendment.
• Such a trespass is a search even if the “thing” the police trespass against is exposed to the public.
2) intrude upon the individual’s reasonable expectation of privacy (even if it does not involve a physical trespass to the “person, home, papers, or effects”).
REP requires that:
• the defendant manifests a subjective expectation of privacy by making an effort to the shield thing or activity the police are looking for from the public; and
• the expectation is objectively reasonable because it is an expectation society is willing to recognize as legitimate.
Is police access to cell site location information a search?
Yes - The Supreme Court held in Carpenter that even though cell site location information is shared with the cell phone service provider, it nonetheless falls within a REP because there is no genuine voluntary choice to share such information. This means police access to cell site location information is a search. – exception to 3rd party doctrine.
When is police use of a sniffer dog or other sensory enhancements a search?
-When police use a dog to detect the odor of narcotics, this is not a search because a dog sniff is considered capable of exposing only the presence of contraband, and therefore does not intrude on a legitimate expectation of privacy.
• However, if police bring the dog onto the curtilage of the home and allow it to explore for a scent, this physical trespass of the home qualifies as a search
Use of commonly available equipment to enhance the natural senses of sight, hearing, or smell will not qualify as a search unless:
• police enter upon the curtilage of the home to utilize the device; or
• police use a device (like a thermal imager) that enables them to see “through the walls” of a home.
A search warrant allows police to
search the specified place for the specified contraband.
An arrest warrant allows the police to arrest the suspect and carries with it implicit authority to search the suspect’s (but NOT a third party’s) home to execute the arrest if:
- police have reason to believe the suspect is home, and
- the suspect refuses to respond to police requests to open the door.
When police act within the scope of a valid warrant, they may seize any item they observe so long as what they see, smell, or feel provides probable cause that the item is contraband, even if it is not listed in the warrant (and even if it’s an arrest warrant)
To invalidate a warrant, the defendant must prove that:
o the warrant was not based on valid probable cause;
o the magistrate was not neutral and detached;
o the warrant failed to describe with particularity the thing to be seized or place to be searched (i.e., the warrant is too general); or
o the affidavit supporting the warrant was so lacking in probable cause that no rookie officer would have trusted it. For example:
-the affidavit offers no objective support for its assertion; or
-the information in the affidavit is obviously stale.
Remember, an invalid warrant is only the first step in a defendant winning a motion to exclude the evidence it led to finding. A court will exclude evidence obtained pursuant to a warrant only if:
o the defendant proves that the warrant was invalid; and
o the good-faith exception to the exclusionary rule is not applicable, meaning that the flaw in the warrant is not the fault of the police who relied on it.
What is the knock-and-announce rule and what is its effect?
- Police must “knock and announce” their identity before entering the home to execute the warrant.
- Knock and announce is NOT required if the police have a reasonable suspicion that doing so will endanger the officers, lead to destruction of evidence, or cause the flight of the suspect.
- Violation of the knock-and-announce requirement will not result in exclusion of evidence
What is a terry stop?
A brief investigatory seizure. The difference with arrest is duration and purpose. The permissible duration is the time necessary to confirm a reasonable suspicion that a crime has occurred; if so, police now have probable cause (PC). If suspicion is denied, seizure must stop.
What is the definition of probable cause?
Probable cause (PC) means a “fair probability,” and exists when there are facts and circumstances that lead a reasonable officer (objective standard) to conclude that the individual committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).
When may an informant’s tip serve as a valid basis for probable cause arrest?
[Gates totality test]
The tip may serve as a basis for a valid probable cause arrest if reliability is established by:
o the informant’s tip containing specific details; and
o the reliability of both the details and the informant being confirmed prior to the moment of arrest.
Corroborating a prediction that any neighbor with an “axe to grind” could make to the police (like the car someone drives, the route they take to work, or the time they normally leave every day) does not indicate that the informant really knows anything about the suspect’s criminal activities, and therefore normally will not establish probable cause. – look for whether the informant has a foundation that indicates the informant has the access to the inside dealings of the suspect
What are the 4 exceptions to the warrant requirements for seizures?
- Arrests:
o No warrant is required to arrest a suspect in public for a felony.
o A misdemeanor arrest requires the offense occur in the officer’s presence or with a warrant.
o However, remember, probable cause is always required for a valid arrest. - Terry Stops
o A “Terry stop” is defined as a brief investigatory seizure.
Because it is a seizure, it must be reasonable.
However, because it is less intrusive than an arrest, it is justified by the lower standard of reasonable suspicion (RS) that the suspect was involved in criminal activity.
o Unlike an arrest, which results in the accused being booked for an offense at the police station, the permissible scope of a Terry stop is limited to the time needed:
in the exercise of due diligence;
to confirm or negate the suspicion. - Routine Police Encounter:
o If a police encounter in no way restrains the freedom of the individual (i.e., there is no use of force or show of authority followed by submission), it does not trigger the Fourth Amendment and requires no cause. - Plain View
o The plain view exception allows police to seize property they observe in public or while acting within the scope of an otherwise lawful search.
o Accordingly, the plain view exception allows the warrantless seizure of property when:
the police observe the property while they are in a lawful vantage point (e.g., it is in public or they are otherwise lawfully in the place from whence they observe the item);
what police observe immediately establishes PC to justify the seizure; and
the officer has lawful access to the point of seizure (if the officer has to “get to” the item to seize it, they must have lawful authority to do so).
What is reasonable suspicion?
Required for Terry stop, frisk.
Reasonable suspicion (RS) is a quantum of individualized suspicion that is not as strong as probable cause (PC), but which is more than a hunch or instinct. RS requires that the officer be able to articulate an objective fact that supports their experience-based instinct or suspicion.
EXAM TIP: Reasonable suspicion is best remembered as the addition of an objective fact to the police officer’s subjective instinct-based suspicion that corroborates that suspicion. Doing so permits a reviewing court to assess whether the police officer has a “particularized and objective basis” for suspecting legal wrongdoing.
Reasonable suspicion that crime is afoot may be established by:
- police observations or other eyewitness reports to the officer;
- a person’s flight from police in high-crime areas; or
- an informant tip plus police investigation that corroborates the tip’s predictions.
• Unlike a tip that establishes Probable Cause, to establish Reasonable Suspicion, the tip does not have to indicate that the informant has “insider” access to the suspect.
• However, an anonymous tip that simply indicates existing facts will not establish RS even if the police corroborate those facts. (must be predictive info)
What are the 10 exceptions to the warrant requirement for searches?
- Exigency
- Search Incident to a Lawful Arrest (SITLA)
- Automobile SITLA
- Automobile exception
- Inventory Exception
- Consent
- Special Needs Doctrine
- Border Exception
- Administrative Searches
- Terry Frisk/Search
Under the ______ exception, If police have Probable Cause, they may search without a warrant when they reasonably believe that waiting to obtain a warrant would result in:
Exigency
imminent flight of the suspect;
imminent destruction of evidence; or
imminent danger to police or others in the area.
o When police are in “hot pursuit” of a suspect with PC to arrest them, exigency allows them to enter any home the suspect retreats into without a warrant–even the home of a third party.
Is exigency invalidated if police conduct (such as banging on a door) triggers the exigency?
No. unless the triggering police conduct violates the Fourth Amendment.
Exigency may justify a warrantless blood draw to preserve evidence of blood alcohol, but ONLY if
the police reasonably believe that the blood-alcohol evidence will be lost if they wait to obtain a warrant.
Exigency will not justify a warrantless home entry solely to preserve evidence of a minor offense (like a minor misdemeanor).
However….
imminent risk to occupants, even if resulting from a misdemeanor (like battery), does trigger the exigency exception.
What is permitted in a Search Incident to a Lawful Arrest (SITLA)?
Police may automatically conduct a full-blown search of an arrestee and the area within their immediate control/lunging distance (including containers) as an incident of an arrest.
o The SITLA must be contemporaneous to the arrest.
o There is no authority to conduct a search incident to a mere citation.
o If the suspect is arrested in their home, the scope of the SITLA is limited to the area within lunging distance and does NOT authorize a search of the entire home.
However, if the police reasonably believe that there are others in the home who pose a threat to their safety, they may conduct a cursory protective sweep to rule out that danger. This is not a full-blown search, and police may look ONLY where people could be hiding.
If contraband is discovered while searching within the permissible scope of a SITLA (or protective sweep), may be seized and used as evidence, even if it is completely unrelated to the arrest?
Yes
EXAMPLE: Police enter the suspect’s home to arrest her pursuant to a warrant. The police have reason to believe that she is a member of a violent street gang and that other members are in the home. The police arrest her in her bedroom after waking her up and immediately search under her bed, finding a pistol that they then seize. Other officers then conduct a protective sweep and, in a closet in the adjacent room, find illegal narcotics. Both the pistol and narcotics will be admissible.
