Criminal Procedure Flashcards
what is a search
A search occurs when government conduct violates a person’s reasonable expectation of privacy.
define reasonable expectation of privacy
Under the 4th Amendment, a person is granted protection from unreasonable government searches.
list places where there is a reasonable expectation of privacy (hint: there are five)
homes, hotel rooms, offices, curtilage (backyard), luggage
list places where there is no reasonable expectation of privacy (hint: there are six)
public streets, open field (even if private property), garbage left out in the street, abandoned property, anything visible from public airspace, anything that can be seen inside one’s home from public space
these are not searches because there is no reasonable expectation of privacy
7 instances where a warrant is not needed for a search
ESCAPES exigent circumstances search incident to lawful arrest consent automobiles plain view evidence obtained from administrative searches stop and frisk
what are the requirements for a search warrant to be issued
Be issued by a neutral magistrate;
Be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime; AND
Describe the place and property to be searched with particularity.
If a warrant fails to meet these three requirements, the warrant is invalid, and the
recovered items will be excluded from the prosecutor’s case-in-chief.
define exigent circumstances
Law enforcement officers may conduct a search without a warrant if: The officers are in “hot pursuit” or immediate danger; OR The evidence would spoil or disappear in the time it would take to obtain a warrant.
when does the exigent circumstances exception not apply?
it does not apply if officers create the exigent circumstances
define search incident to lawful arrest
Law enforcement officers may conduct a search without a warrant if the search occurs at the time that a lawful arrest is made.
what can officers search during a search incident to lawful arrest
scope of the search is limited to objects within the reach of the arrestee (e.g., if the arrestee is restrained, their reach is very limited – this would limit the permissible scope of the search)
Law enforcement officers may conduct a search without a warrant if a person voluntarily _________ to a search.
Do officers have to inform the subject that she has a right to refuse?
Law enforcement officers may conduct a search without a warrant if a person voluntarily consents to a search.
Officers do NOT have to inform the subject that she has the right to refuse consent to the search.
can a third party consent to search?
A third party with apparent authority can consent to search (like a roommate)
However, officers cannot search over a present occupant’s objection (e.g., if one occupant consents and the other occupant refuses, officers cannot search the property).
what is the automobiles exception to warrantless searches
Law enforcement officers may conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime.
what can officers search during the automobile search without a warrant
They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause (e.g., cannot search for a shotgun in the glove box where it cannot reasonably fit).
what is plain view
Law enforcement officers may seize evidence without a warrant if:
The officers are legally on the premises;
The evidence is observed (with any of the five senses) in plain view; AND
There is probable cause to believe the items are evidence of a crime or contraband.
Law enforcement officers do NOT need search warrants to conduct administrative searches if the search is both
Reasonable; AND
Conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting the discretion of the officer
like airplane boarding areas, borders
define stop and frisk
Law enforcement officers can stop an individual when the officer has a reasonable suspicion, based on articulable facts (i.e., more than a “hunch” – less than probable cause), to believe that the subject is or is about to be engaged in criminal activity.
what can an officer do during a stop and frisk/terry stop
During a Terry stop, an officer can frisk a subject for weapons without a warrant; however, the officer cannot initiate a search for evidence. If probable cause develops during the Terry stop, the officer can then make a lawful arrest of the individual.
If the frisk for weapons reveals objects whose shape makes their identity obvious (e.g., object is obviously contraband), the officer may seize those objects.
what must an officer have in order to arrest an individual
probable cause
What are two things that can give an officer probable cause
An officer has probable cause if: The officer witnesses the commission of the crime; OR A person tells the officer that a crime has been committed.
do you need an arrest warrant to arrest someone?
no, an individual may be arrested with or without an arrest warrant
Instances where you need an arrest warrant
Are there any exceptions?
an arrest warrant authorizes law enforcement officers to enter a home to arrest the individual.
without a warrant, officers can arrest an individual inside the home only if they have consent or exigent circumstances
requirements for an arrest warrant
An arrest warrant is issued by a neutral magistrate based on a finding of probable cause to believe that the named individual has committed a crime.
define 5A rights
The 5th Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. A defendant who wishes to invoke his 5th Amendment right does so by simply not taking the stand.
