Criminal Procedure Flashcards
What is a seizure within the scope of the 4th Amendment? What constitutes a seizure?
Any EXERCISE OF CONTROL by a government agent over a person or thing is a seizure and so must be reasonable. A seizure occurs when, under the TOTALITY OF THE CIRCUMSTANCES, a reasonable person would feel that they were NOT FREE TO DECLINE the officer’s requests or otherwise TERMINATE the encounter.
- A reasonable person in this context is a bold person, not a timid one.
What is an arrest? What is required for a valid arrest to take place?
An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation. An arrest must be based on probable cause—that is, trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law. Probable cause is based on the totality of the circumstances.
Generally, when is a warrant required for an arrest?
A warrant generally is not required before arresting a person in a public place. However, police generally must have a warrant to effect a nonemergency arrest of a person in their home.
When may officers with a warrant enter a suspect’s home?
The officers executing a warrant may enter the suspect’s home only if there is reason to believe the suspect is within it.
When may police bring a suspect to the station for questioning or fingerprinting against the person’s will?
Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will.
What effect does an unlawful arrest have on a criminal prosecution?
An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution.
What are Terry Stops and how do they work?
The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (that is, not merely a hunch), they may detain a person for investigative purposes. If the police also have reasonable suspicion that the detainee is armed and presently dangerous, they may also frisk the detainee for weapons.
- Articulable facts are needed (more than a mere hunch, but less than the PC standard).
- Whether the police have reasonable suspicion depends on the totality of the circumstances.
What do informant tips need to support reasonable suspicion or probable cause?
When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information) to be sufficient.
What time limits apply to investigatory detentions?
Investigatory detentions (Terry Stops) are not subject to a specific time limit. The police must act in a diligent and reasonable manner in confirming or dispelling their suspicions.
- The police may ask the detained person to identify themself (that is, state their name) and generally may arrest the detainee for failure to comply with such a request.
- The detention will also turn into an arrest if during the detention other probable cause for arrest arises.
When may police stop an automobile?
Generally, police officers may stop a car if they have at least reasonable suspicion to believe that a law has been violated (same as with a person).
Does the use of police dogs count as a search?
During routine traffic stops, a dog sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries. Moreover, in 2013 the Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for a search.
- NOTE: In 2013, the Supreme Court also held that the police (without probable cause) cannot use a drug sniffing dog outside of the home of a suspected drug dealer.
When a police officer has made a mistake of law that is relevant to determining the validity of a seizure, what result?
A police officer’s mistake of law (EX: mistakenly believing that a vehicle must have two working brake lights) does not invalidate a seizure as long as the mistake was reasonable.
In automobile stops involving multiple automobile occupants, what rights do occupants other than the driver have?
An automobile stop constitutes a seizure not only of the automobile’s driver, but also of any passengers as well. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.
What are the rules for police roadblocks?
If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional. If special law enforcement needs are involved, the Supreme Court allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver violated some law. To be valid, the roadblock must: (1) Stop cars on the basis of some neutral, articulable standard (EX: every car) and (2) Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility (EX: DUI checkpoint).
When may an officer order car occupants out of the car during a stop? What if the officer believes that the occupants are armed?
After lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out.
- Moreover, if the officer reasonably believes the detainees are armed, the officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out.
What result/restrictions when officers stop a car for a traffic violation but have an ulterior motive (i.e., suspect another crime)?
If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
What is the general framework for a 4A evidentiary search or seizure?
(1) Is there governmental conduct?
(2) Is there standing?
(3) Is there a valid warrant?
(4) Is there an exception to the warrant requirement?
What is governmental conduct for 4A purposes?
For 4A purposes, governmental conduct is police officers, other government agents, or private individuals acting at the direction of the public police. It does
not protect against searches by privately paid police unless they are deputized as officers of the public police (power to arrest).
What is required to establish standing for 4A purposes?
There are two ways in which searches and seizures can implicate an individual’s 4A rights: (1) search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy (with respect to the place searched or item seized); or (2) physical intrusion by the government into a constitutionally protected area to obtain information.
- Determination made based on the TOTC.
When a person holds objects out to the public, what effect for 4A purposes?
A person does not have a reasonable expectation of privacy in objects held out to the public. Generally, this includes information in the hands of third parties (such as bank account records).
- However, a person does have a reasonable expectation of privacy in their cell-site location information (that is, personal location information derived from cell phone usage data) which is stored in the hands of third parties.
When does a person have a reasonable expectation of privacy for 4A purposes?
(1) The person owned or had a right to possess the place searched.
(2) The place searched is the person’s home.
(3) The person is an overnight guest of the place’s owner.
- These create an automatic right of privacy.
(4) The person owns the property seized.
- If a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched.
Provide a list of things in which an individual has no right to privacy in.
Sound of your voice; style of your handwriting; paint on the outside of car; account records held by the bank; location of car on a public street or driveway (NOTE: the installation of a GPS device on a suspect’s car constitutes a search within the 4A–need to physically tail); anything that can be seen across the open fields; anything that can be seen from flying over public airspace; odors emanating from your luggage or car; and garbage set out on the curb for collection.
What restrictions are there on sense-enhancing technology that police can use for purposes of 4A searches?
Use of sense-enhancing technology that is not in general public use (for example, a thermal imager as opposed to a telephoto camera lens) to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion violates the suspect’s legitimate expectation of privacy. And police officers may not covertly and trespassorily place a GPS tracking device on a person’s automobile without a warrant.
What is required for a valid search warrant?
(1) Probable Cause
- A warrant will be issued only if there is probable cause to believe that a crime has been committed (arrest) and/or that seizable evidence from that crime (search) will be found on the person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions.
- An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the INFORMANT’S RELIABILITY, the TIP’S VERACITY, and the INFORMANT’S BASIS FOR KNOWLEDGE are relevant factors in making this determination. Note that the informer’s identity generally need not be revealed.
(2) Particularity
- A warrant must describe with particularity the place to be searched and the items to be seized (even if the underlying affidavit does so).
- A warrant can be antipatory (evidence/person need not be there at the time the warrant is issued).
(3) Neutral and Detached Magistrate
- The magistrate who issues the warrant must be neutral and detached (for example, a state attorney general is not neutral).
Can warrants be used to search the homes of third-party non-suspects?
Yes. A warrant may be obtained to search premises belonging to non-suspects, as long as there is probable cause to believe that evidence will be found there.
How must a warrant be executed?
Only police may execute a warrant. No 3d party may be present unless they are used to identify stolen property. Police must knock and announce.
- Violations of the knock and announce rule will not result in the suppression of evidence
During the execution of a search warrant, can police search people found on the premises but not named in the search warrant? (or to follow, detain, and search persons who left before the warrant was executed?)
A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.
- Neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.
What is a Search Incident to a Lawful Arrest?
Incident to a constitutional arrest (that is, one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence.
- The police may also make a protective sweep of the area if they believe accomplices may be present. The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of automobiles, the term “contemporaneous” does not necessarily mean “simultaneous.”
- If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.
What can be searched during a SILA seach?
The person and the areas within the person’s wingspan.
When and how may police search an automobile during a SILA search?
The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search: The arrestee is unsecured and still may gain access to the interior of the vehicle; OR The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
When is a suspect an arrestee?
When the officer tells them that they’re under arrest and attempts to restrain them (EX: w/ handcuffs). (???)
What analysis when considering searches involving technologies that didn’t exist at the time of the constitution?
In assessing the validity of a search incident to arrest involving things that did not exist when the 4A was adopted (for example, cell phones, blood alcohol tests), the court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests.
When a suspect is arrested, how can they treat a cell phone for search 4A search purposes?
The physical attributes of a cell phone may be searched, but not the data.
What kind of searches may be made of a suspect subsequent to their incarceration or the car’s impoundment?
At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle (and can search any containers within the vehicle).
What is the automobile exception to the 4A warrant requirement?
PC THAT THERE IS ILLEGAL ACTIVITY WITHIN THE CAR. If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle (including the trunk) and any closed container that might reasonably contain the item for which they had probable cause to search.
- If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later. However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant.
- If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.
- The PC necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched.
What is the Plain View exception to the 4A warrant requirement?
The police may make a warrantless seizure when they: (1) are legitimately on the premises; (2) discover evidence, fruits or instrumentalities of crime, or contra
band; (3) see such evidence in plain view; and (4) have PC to believe (it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.
What is the Consent exception to the 4A warrant requirement?
A warrantless search is valid if the police have a voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent.
- The scope of the search may be limited by the scope of the consent, but it generally extends to all areas to which a reasonable person under the circumstances would believe it extends.
- Police saying that they have a warrant negates consent.
Who has authority to consent to a search of an abode and when can they provide this consent? What does the interplay between co-occupants look like?
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant. Nevertheless, if a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on the consent of the remaining occupant, even if the removed co-occupant had refused consent.
What is required for a Terry Stop and Frisk? What may an officer ask of the suspect?
A police officer may stop a person without PC for arrest if they have an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk.
What is the permissible scope of a Terry Frisk?
The scope of the frisk is generally limited to a pat down of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.
- During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence.
Does “manipulated” fall into the “plain feel” meaning for Terry Frisk purposes?
No.
What options does an officer have if a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous?
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may: (1) conduct a frisk of the suspected person, and (2) search the vehicle, so long as it is limited to the areas in which a weapon may be placed.
What is the Evanescent Evidence exception to the 4A warrant requirement?
Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant. Officers may obtain evanescent evidence (not blood draw though) if it’s practical to do so.
What is the Hot Pursuit exception to the 4A warrant requirement?
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.
- 15 minutes behind is not hot pursuit.
- Fleeing Felon? If the fleeing person is suspected of a misdemeanor, their flight does not always justify a warrantless entry into a home. The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry.
- If the police are truly in hot pursuit of a felon, they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible.
