Criminal Procedure Flashcards
Fourth Amendment Search and Seizure
The Fourth Amendment prohibits unreasonable searches and seizures when there is government action, and the property or place to be searched or seized is one in which the defendant has a reasonable expectation of privacy.
Government Conduct
To demonstrate government conduct, the defendant must prove the government or police were involved in the unreasonable search and seizure.
Reasonable Expectation of Privacy
The defendant must also prove he has a reasonable expectation of privacy as to the places searched and items seized by the government.
Seizure of a Person
A seizure occurs if under the totality of the circumstances, a reasonable person would not feel free to leave. Types of seizures include arrest, stop and frisk, police checkpoints, and traffic stops.
Arrest Warrant
An arrest in the defendant’s home generally requires an arrest warrant. However, an arrest warrant is not required to make an arrest in a public place. If an officer witnesses a felony or misdemeanor, he can make a warrantless arrest. Also, if an officer has probable cause to believe that a felony has been committed (not witnessed by the officer), an officer can make a warrantless arrest.
Terry Stop and Frisk
An officer can stop a person if he has reasonable suspicion that the person is engaged in or has engaged in criminal activity.
Police Checkpoints
Police checkpoints are generally valid, as long as the stop is conducted in a non-discriminatory manner and the purpose of the checkpoint is for an articulable reason beyond general crime prevention.
Traffic Stops
Traffic stops are valid if the officer has reasonable suspicion or probable cause that a traffic law has been violated.
Search
A search occurs when governmental conduct violates the defendant’s reasonable expectation of privacy. A warrant is required for all searches unless an exception applies.
Valid Search Warrant
To be valid, a search warrant must 1) be issued by a neutral magistrate, 2) be based upon probable cause, and 3) describe with particularity the defendant and crime or the places to be searched and items to be seized.
Knock and Announce Rule
Subject to certain exceptions, the police must also announce their presence and state their purpose.
Defective Warrant
Evidence collected in violation of a defendant’s Fourth Amendment right to privacy may nonetheless be admissible if police officers acted in good faith reliance upon a defective search warrant as measured by a reasonable person standard.
Note - Only discuss if there are facts indicating the warrant was defective
Exceptions to a Warrantless Search
Warrantless searches constitute a Fourth Amendment violation, and evidence seized during the search will be inadmissible unless subject to an exception.
(ESCAPES)
Exigent Circumstances
SILA
Consent
Automobiles
Plain View
Evidence from Administrative Search
Stop and Frisk
Frisk of a Person
The officer can then frisk or pat down the outer clothing of the defendant for purposes of officer safety. If the officer feels an object whose identity is immediately obvious as contraband, it can be seized under the “plain feel” exception.
Automobile Frisk
If an officer lawfully stops a car due to reasonable suspicion of a traffic violation, the officer may frisk the inside of the car if he has reasonable suspicion there is a weapon in the car, limited to the areas that may contain a weapon.
Search Incident to Lawful Arrest (SILA)
A search incident to a lawful arrest must be reasonable in scope and incident to an arrest based on probable cause.
Probable Cause
Probable cause to arrest may come from the police officer’s own personal observations, information from a reliable, known informant or unknown informant that can be independently verified, or evidence seized during stops based on reasonable suspicion, plain view, or a consensual search.
Scope of Search
The police may conduct a contemporaneous search of the arrestee and his immediate surrounding area (i.e., wingspan), such as pockets and containers. If the arrestee is at home, the police may conduct a protective sweep of the home to ensure officer safety. If the arrestee is in a vehicle, the police may search the glove compartment if the arrestee is still within reaching distance of the compartment or if the officer has probable cause to believe it contains evidence of a criminal activity.
Automobile Exception
Under the automobile exception, the police can search any part of the defendant’s car if they have probable cause to believe it contains contraband or other evidence of a crime.
Plain View Doctrine
No warrant is required to seize evidence in plain view if the police are lawfully in the location from which evidence can be viewed and the criminal nature of the item is immediately apparent.
Exigent Circumstances
Under a totality of the circumstances test, exigent circumstances may make a warrantless search constitutional if probable cause exists. Exigency may be determined by many factors, including hot pursuit of a fleeing felon, reasonable apprehension that a delay in obtaining a warrant would result in immediate danger or the destruction of evidence, or police or public safety.
Consent
If a party consents to a search, a warrant is not required. The consent must be voluntary, and there must be no threats of harm, compulsion, or false assertion of lawful authority.
Exclusionary Rule and Fruit of the Poisonous Tree
The exclusionary rule applies to evidence seized as a result of government illegality, as well as the “fruit of the poisonous tree,” which is any evidence derived from the illegal government action.
Name the Exceptions to the Exclusionary Rule
Inevitable discovery, independent source, passage of time, good faith
Mnemonic - PIIG (passage of time, inevitable discovery, independent source, good faith)
