Criminal Procedure Flashcards
Bill of rights is which amendments?
The first 10
T/F) The BORs not directly applicable to states.
True. Courts use DP clause of 14A to incorporate and make BORs applicable to states.
__ ___ clause of 14A used by courts to make some of the bill of rights applicable to states.
DP clause of 14A
BORs are ___ interests that may not be taken away without due process [14A] of law.
liberty interests
______ ______ : DP does not require the states to honor BORs. However, ___ ___ of rights that are of ‘fundamental importance’ helps apply As to the states.
Selective incorporation
S.I. is used for what sort of rights?
Those that are of fundamental importance
The ____ Amendment of the United States Constitution protects citizens from unreasonable searches and seizures by the government.
4A
4A is not a gurantee against all searches & seizures, only those by FED that are what?
Unreasonable
4A only applies to a space where person has…
REOP [Katz] and the Expection of privacy is [subjectively] reasonable.
4A requires that FED must have warrant based on what?
Probable cause
The Supreme Court said yes, the Fourth Amendment does apply everywhere. It protects people, not just property. Even though Katz was in a public place, he still had a right to privacy for his phone calls. The agents didn’t physically go into the phone booth, but that doesn’t matter. The only way to fully protect Katz’s rights would have been to get a warrant for the wiretap.
Katz v. US
REOP test originates from what case?
Katz v. US
REOP test? - From Katz
- Person has REOP [subjective]
- That expectation is reasonable [objective]
T/F) Invasion of the privacy of a home does not have to be physical, can be electronic via monitoring equipment.
True
Do business guest at the home have REOP?
Less so than a social guest.
_____ privacy: The area of land around a house or dwelling counts as part of the home.
Curtilage privacy
Curtilage analysis:
1.
2.
3.
4.
- Proximity to dwelling
- Enclosed?
- What is it used for?
- Steps taken to prevent observation?
T/F) Cops can trespass onto open field areas [unlike curtilage areas] with no 4A violations.
True
___ ___ doctrine: You have no REOP on information that is readily turned over to 3rd parties. IE: Cops can access credit card, bank, and phone records.
3rd party doctrine
Is there a REOP when traveling on public roads?
No. US v. Knottz
Is there REOP of the airspace above your home?
No.
When can search be conducted without warrant?
- PC +
- Exigent circumstance
3 required elements of K&A rule?
- Announce Police [Identity]
- Announce Police [purpose]
- Allow [sufficient time] to answer / open door
T/F) Failure to comply with K&A 3 rules may render warrant defective.
True!
What is the purpose of the K&A rule as related to satisfying 4A?
It satisfies the “reasonableness” standard.
Warrants must say with ______, the places, persons, etc. to be searched.
Peculiarity [avoids overstep of ops]
This court held that the knock and announce rule is part of the reasonableness test required by the Fourth Amendment.
Wilson v. Arkansas
The Fourth Amendment’s reasonableness requirement incorporates the common law rule that police must K&A identity+purpose before attempting forcible entry, unless?
Exigent circumstances exist and to do so would undermine law enforcement interest. [Flushing drugs]
What case delivered the “automobile” exception to the warrant requirement?
Carroll v US
According to CJ Rehnquist, how is probable cause analyzed?
Under the totatality-of-the-circumstances. This is an objective analysis.
“Enough particularized facts to lead an average person of reasonable precuation to find fair probability that….”
The _________________ test is a legal standard that evaluates the validity of a search warrant based on an informant’s tip. It was developed by the Supreme Court in the cases Aguilar v. Texas (1964) and Spinelli v. United States (1969).
Aguilar-Spinelli test
2 prongs of Aguilar-Spinelli test?
- Knowledge
- Veracity
The Supreme Court replaced the Aguilar-Spinelli test with the _____________ approach in Illinois v. Gates (1983). The Court argued that the two-pronged test was too rigid and technical.
Totality of circumstances approach – CJ Rehnquist
T/F) an “alert” by a drug-detection dog during a traffic stop provides probable cause to search a vehicle.
Does an “alert” by a dog for a persons bag at airport consitutute a “search?”
- True
- No.
How does Professor Lawton describe PC?
Enough [particularized] facts to lead [commonsense] ppl to believe = [Fair probability] that “fruits, instrumentalities, or evidence” of crime exist.
_______ : Means by which crime occurred. [Weapons]
Instrumentalities
______ : Stolen property is an example of this. Or money robbed from bank. _____ of a crime.
Fruits
Can PO search a car without a warrant?
- Yes if they have PC can search whole car. [Carroll v US]; or
- Incidental to arrest [AZ v. Gantz] RS or near car unrestrained, limited in scope.
- CA v. Acevedo = or to get a container that they have PC for. [same rule as Carroll]
- Inventory. [Bertine] Must be valid Inventory policy and PO acting in GF. (doing inventory not looking for evidence)
Corroborated statements by an unknown informant can amount to PC under what approach?
Totality of the Circumstances [Illinois v Gates]
Unknown informant tips need what to help reach PC?
Corroboration
Under the plain view doctrine, must the discovery of an item be [inadvertent] for PO to make warrantless seizure?
No. Under the Fourth Amendment the police can seize an item that is in plain view without a warrant, even if finding the item was not inadvertent, so long as the police have the legal right to be where the item is found and they have not manipulated the search area to find it. [Horton v. CA]
Items can be seized in plain view, even if purposefully [not inadvertent] so long as what?
- The search has been properly confined to the warrant’s specifications.
- PO did not manipulate search area. (Speakers)
Does a warrantless arrest violate the Fourth Amendment if there is probable cause to believe that the person has committed a felony?
No. [US v. Watson]Police may arrest a suspect without a warrant if there is probable cause to believe the suspect committed a felony.
The search of a person incident to an arrest is a valid exception to the warrant requirement of the Fourth Amendment to the United States Constitution. This exception is permitted for the safety of the arresting officer and to prevent destruction of evidence. [T/F]
What about cell phone?
True.
Cell phone = no
[Chimel v. CA]
Why cant PO search a cell phone incidental to an arrest?
Unlike searching person incidental exception, searching of a phone does not advance officer safety nor does it prevent evidence destruction.
When is a warrantless arrest generally permissive?
When the person has committed a felony. [US v. Watson]
T/F) During a lawful arrest, an officer may conduct a full warrantless search of the arrestee even if the officer lacks probable cause to believe that the search will yield either a weapon or evidence relating to the arrest offense.
True, the PC that permitted the arrest permits the search for (1) officer safety and (2) prevent destruction of evidence.
Does search incident to lawful arrest extend to cell phones?
No
T/F) Strip searches for persons in jail for minor offenses requires at minimum, reasonable suspicion.
False. This search is justified due to health and security risks. [Lafayette]
T/F) Courts have reasoned that the legitimate penological interests of correctional officers do NOT justify strip searches without reasonable suspicion.
False. [Lafayette]
T/F) Swabbing a check during booking is constitutional and not a 4A violation. [No different than fingerprinting]
If true, why?
True. This is considered a normal part of booking process. Once someone is in jail, privacy rights are reduced.
The auto exception to 4A, another long-standing exception to the warrant requirement provides that, when the police have PC to believe that an automobile contains the fruits, instrumentalities, or evidence of crime, they may search the vehicle without a warrant. However, the vehicle must be what?
Inherently mobile. [Carroll]
Does inherently mobile for the auto exception require actual mobility?
No.
Whats the easiest way for a PO to get around the PC requirement?
Consent search
T/F) Mobile homes can be moved quickly and thus the automobile exception applies. No need for warrant of PO has PC.
True but look at the facts. If the “mobile home” is planted down, connected to ulilities, etc., there will be a weaker argument for the exception. [Carney]
Do you think the auto exception could apply to approaching and accessing a motorcycle parked in driveway?
No, curtilage applies. Can look at it from street though if in plain view.
Can police search a closed container in a car without warrant?
Yes if they have PC to believe it has contraband in it. [California v. Acevedo]
“A police officer’s warrantless inventory search of closed containers inside an automobile, conducted pursuant to an established inventory policy, does not violate the Fourth Amendment to the U.S. Constitution.”
[Bertine v. Colorado]
1. Valid Inventory policy +
2. GF execution
(NOT a quest for evidence)
______ exception to 4A: Similar to booking exception. Conducted for noncriminal LE purposes to:
1. Protect property
2. Protect against false claims
3. Protect public & PO against dangerous items
***Initial seizure of the property must have been lawful.
Inventory exception. [Colorado v. Bertine]
The ___________ exception to the Fourth Amendment allows police to search a vehicle without a warrant when it’s being impounded. This exception is based on the idea that vehicles have a lesser expectation of privacy than homes or offices
[Colorado v. Bertine] Inventory exception
- Inventory policy +
- Good faith
According to the SC, what is the key element making “Inventory” exceptions permissive exceptions to 4A? [Bertine]
- Searches of closed containers must follow [standarized police policy / procedures] for inventory searches.
+
- Must be in GF
IE: There should be an inventory policy.
2 elements that make inventory search reasonable?
- Established inv. policy; and
- Done in good faith
AZ v. Gant provides 2 times it is reasonable to search a vehicle after arrest.
1.
2.
- Suspect within reaching distance of passenger compartment, unrestrained…; or
- Reasonable suspicion that there may be evidence of crime in car.
T/F) PO w/ arrest warrant MAY force entry into home, when they believe person is there.
True
Does an inventory search of personal effects during the booking of an arrested person violate the Fourth Amendment?
Nope. Legitimate penal interest outweigh purps privacy rights which are lowered in jail. [Protect ∆ property, stop contraband, health, protect inmates]
If during booking inventory search, PO / CO finds contraband, can this be grounds for new charges itself?
Yes.
2 exceptions that help you search autos?
- AZ v. Gant = [after arrest] if RS that evidence of crime might be found in vehicle or vehicle is close to person. [passenger compartment], then don’t need warrant.
- Carroll v. US = [no arrest] if PC there is evidence in car, don’t need warrant.
AZ v. Gantz =
Carroll v. US =
Bertine =
- Gantz = Search of car incidental to arrest. [RS or Passg. comp.] no warrant.
- Carroll = If PC, can search car no warrant.
- Bertine = INV search of car ok if policy + GF.
A ______ _______ to a lawful arrest is a warrantless search of a person or their immediate area after they have been arrested. This is done to preserve evidence, prevent the arrestee from escaping, and ensure officer safety.
Search Incidental to arrest = no need for warrant. PC that permitted arrest permits the search. [Chimel]
T/F) A person may voluntary consent to a search, even if they did not know consent was optional.
True. [Bustamonte]
According to Bustamante, 3 times searches are valid/reasonable?
(1)warrant
(2)probable cause, or;
(3) consent from someone with legal control over the space being searched. For consent to be valid, it must be voluntary. [need not know they can refuse]
Voluntariness of consent determined how?
[Bustamonte]
1. Not coerced
2. Voluntary
3. Totality of Circumstances
Note: Not “Knowing” you could refuse is but one single factor and not conclusive.
T/F) Warrantless entry and subsequent search are valid under the 4A if the police [reasonably believe] the person giving consent has the authority to do so. This is true even if person really does NOT have that authority.
True. It’s the POV of the officer that controls. [Rodriguez]
- Bustamonte =
- Rodriguez = “apparent agency” case..
- Bustamonte = Consent is valid even if the person didn’t know they could refuse. [Burnt tail light] Knowledge of refusal only one factor [not conclusive] in determining that volunatary consent was (1) voluntary and (2) not coerced.
- Rodriguez = PO can get consent from someone that doesn’t have right to give it [as long as PO believes that person does have the authority] – Battered spouse who didn’t own apartment.
A woman who had been beaten by __________ called the police. She took them to Rodriguez’s home and unlocked the door with her key. She used to live there with Rodriguez but had moved out a few weeks before. She kept the key without Rodriguez knowing.
Rodriguez. [Consent is valid even though she couldn’t give it]
According to Rodriguez, PO doesn’t have to be right about who let them in, they just…..
Have to have good reason to believe it.
1.Warrant, per the 4A, must be based on what?
2.Describe what?
3. Issued by who?
1.PC
2.Particularized facts describing place to be searched / items seized
3. Neutral & detached magistrate
Who makes the final determination [b4 issuing warrant] on whether pc exist sufficient to issue?
Magistrate Judge. Judge must be “neutral and detached.”
- _____ warrant protects an individual from an [unreasonable] seizure.
- ______ warrant safeguards an individual’s interest in the privacy of his home against unjustified PO intrusion.
1.Arrest
2.Search
When applying for a warrant, LE includes _____ where, either under oath or affirmation, sets forth that…
- Affidavit
- PC to believe there is 1)Evidence of criminal activity or
2)person to be arrested committed a crime.
When PO applies for warrant w/affidavit showing PC, he is suggesting what will be found?
- Evidence of crime
- Arrest person who did a crime
Can affidavits include hearsay and tips?
Yes. The Magistrate will determine if PC to support the warrant.
Case _________ showed that ∆ can challenge affidavit (1) on its face failed to show PC or (2) challenge the veracity of statements in affidavit.
Franks v. Deleware
2 ways ∆ counsel can challenge a warrant?
- [On its face] did not establish PC.
- Challenge veracity / accuracy of statements.
Note: Can also challenge the grounds officers exceeded the lawful scope of the warrant itself.
Warrants have a particularity requirement… what does that mean?
“Describe with particularity…”
1. Place to be searched
2. Items to be seized
“The Supreme Court ruled that the Fourth Amendment does not require that the conditions triggering execution of an anticipatory warrant be set forth in the warrant. Anticipatory warrants are not unconstitutional, and probable cause for a warrant exists whenever there is a reasonable likelihood that evidence will be discovered in a given location at the time that a search is conducted.”
US v. Grubbs.
What happened in US v. Grubbs?
He ordered child porn from undercover website and police executed an “anticipatory warrant” based on this.
“A search made under an otherwise valid warrant containing a mistake does not violate the Fourth Amendment if the police acted reasonably”
Maryland v. Garrison.
What happened in Maryland v. Garrison?
Police had warrant but went into wrong apartment on 3rd floor and discovered weed. They stopped the search once they realized in wrong apartment.
In Maryland v. Garrison, the Court provided that the actions of officers should be viewed in light of info available to them when….
1. They acted; or
2. In hindsight
When they acted. NOT in hindsight. The warrant was valid when initially issued. The officers’s reasonably concluded only one apartment.
Did the Officer’s in Garrison violate his Constitutional rights by searching his apartment? [Which was the wrong apartment]
No. They did not realize wrong place and when they did, they stopped.
The mistake was “reasonable.”
If an affidavit listing items to be seized is not incorporated by reference in the warrant itself?
May be invalid.
Police affidavit stated that the warrant would be executed only after a controlled delivery of contraband to the specified location.
Example of what?
Anticipatory warrant w/ triggering condition
For anticipatory warrants, magistrate must determine what?
- Probable that evidence of crime on premises when executed; and
- If triggering condition occurs, fair probability that evidence of crime will be found [and fair probability triggering condition will occur]
T/F) Anticipatory warrants are not valid under the 4A.
False. US v. Grubbs.
The 4A only requires two things that must be “particularly described” in the warrant.
- Place to be searched
- Items / persons to be seized
US v. Grubbs
Grubbs decision holds that the 4A does not require that the triggering condition in an anticipatory warrant be particularized in the warrant itself but…. what about affidavits?
It must be included in the affidavit to establish prospective PC. [Still good practice to put in the warrant]
“A search made under a valid warrant that contains a mistake doesn’t violate the Fourth Amendment rules if the police acted reasonably.”
Maryland v. Garrison
Descriptive language in a warrant must establish with ______ ______ the place to be searched or things to be seized.
Reasonable Certainty
When will Magistrate, at suppression hearing, look at both the description of place to be searched on a warrant AND the affidavit.
- Affidavit physically attached
- Affidavit referenced[incorporated] in warrant
Where there has been no such incorporation by reference, however, a warrant that does not otherwise satisfy the particularity requirement is unconstitutional.
What does this mean to you?
If warrant doesn’t describe (1) Place to be searched and (2) Items / persons to be seized, it better be in the affidavit / supp. docs which are incorporated / referenced in the warrant itself to establish PC.
K&A rule case?
Wilson v. Arkansas
Must evidence found in search be suppressed if police break the K&A rule? IE: Don’t allow enough time before coming in.
No. This is because the ‘knock and announce’ rule is about protecting people and property, not about privacy of evidence.
Exception to the K&A rule?
- Exigent circumstances
Purpose of K&A requirement, per Wilson v. Arkansas?
- Protect officer safety
- Protect persons limited privacy interest when PO already have warrant.
- Protect property
There is an exception for K&A in the exigent circumstances exception. What are those?
- Destruction of evidence
- Threat of physical violence
3 elements of K&A?
- Announce identity
- Announce purpose
- Delay entry
T/F) A violation of the knock & announce requirement automatically means exclusion of evidence found in a proper subsequent search per warrant.
False. Exigent circumstances may exist.
1. Destruction of evidence
2. Threat of violence
T/F) For felony drug investigations, PO are never required to K&A.
SC said false. We look at each set of facts “case by case.” There may be exigent circumstances to justify but there should be no blanket rule.
If PO have [RS or PC] that K&A will be dangerous, inhibit investigation, or allow destruction of evidence, they need not do it.
Reasonable suspicion
To skip K&A, PO must have ___ ___ of exigent circumstances.
RS
Is it constitutional to hold someone who lives in a place that’s being searched for illegal stuff?
Yes, so long as the search is being done with a proper warrant.
Police conducting a valid search of a home may not detain a person for the sole purpose of preventing him from interfering in the search if he located where?
Outside the immediate vicinity of his home.
Is it an unreasonable seizure under the 4A if an officer asks a person about something not related to the search warrant?
Nope [Rehnquist] b/c mere questioning is not a seizure, this is perfectly fine as long as it doesn’t make the detention last longer.
The test for validity under the Fourth Amendment is whether the officers’ actions were [objectively/subjectively] reasonable.
Objectively
Does a person’s mere proximity to others independently suspected of criminal activity give rise to probable cause to search that person?
No.
The ability to detain persons pursuant to valid search warrant while search is being conducted arrives from what opinion?
MI v. Summers
T/F) detentions incident to the execution of a search warrant are reasonable under the 4th Amendment.
If true, why?
True b/c the intrusion on personal liberty is outweighed by special LE interest at stake.
“The detention of an occupant of premises being searched for contraband pursuant to a valid warrant is constitutional.” Case?
MI v. Summers, relying / expanding on Terry.
Is there any limitation on Summers? [Detaining persons in valid search warrant area]
yes, it is limited to the “immediate vicinity.”
T/F) Merely questioning people present during valid search warrant execution does not constitute a separate seizure requiring reasonable suspicion.
True!
Is merely being present at execution of a search sufficient for Officer to do a Terry frisk?
No. PO may detain and question but to frisk under Terry, the PO will need reasonable suspicion.
Scope: Warrants must state with _______ the items or person to be seized and places to be serached.
Particularity
The scope of a lawful search is defined by what?
Places / objects where there is PC to believe it may be found only. [Only in spaces where there is PC]
T/F) When objects listed in a warrant are found, the search may nonetheless continue.
False.
Define PC for search warrant:
“Enough [particularized] facts to lead
common sense person of reasonable caution to believe…”
[fair probability] that fruits, instrumentalities, of evidence of crime exist and will be found in place to be searched.
PC means there is ___ ____.
Fair probability
Define PC for arrest warrant.
“Enough particularized facts that a common sense person of reasonable caution would believe that…”
“Fair probability that a crime has been committed and the person to be arrested committed the crime.”
What is the test to determine if PC exists?
CJ Rehnquist totality of the circumstances test from Illinois v. Gates.
T/F) Police need a warrant to make wireless carriers give them data that tracks a person’s movements for a long time.
If true, exceptions?
True. Unless there is an emergency. [Carpenter v. US]
Is there REOP in garbage to which member of public have access to?
No.
T/F) Officers engage in 4A search when they open garbage bags left on curb.
False. This have been left for a 3rd party [trashman] so not 4A search.
T/F)
“Police cannot be reasonably expected to avert their eyes from evidence of criminal activity that can be observed by any member of the public.”
True [trash, plain view, etc.]
When can a lawful traffic stop, using drug dog, become unlawful?
If using drug dog prolongs the stop beyond the [reasonable time] required to handle traffic stop.
Under _______, use of a thermal imager to determine level of heat from a home is a 4A search.
Kyllo
Is it a 4A search when government accesses historical cell-site location info that provides comprehensive chronical of user’s past movements.
Yes. Carpenter v. US. Not permissible unless legit emergency situation.
[Wilson v. Arkansas] “The knock and announce rule is part of the ___________ test required to assess whether a search was valid under the Fourth Amendment.”
Reasonableness test
To justify a no knock entry, PO must show ____ ____ that knocking would be dangerous or inhibit investigation / lead to destruction of evidence.
Reasonable Suspicion
Do exigent circumstances exist for forced entry if enough time has passed to make it reasonable to suspect imminent loss of evidence?
Yes. US v. Banks
- Can officers, with PC, search a car without a warrant?
- What about containers?
- Yes due to inherent mobility of vehicles. Carroll v. US
- Carroll v. Acevedo
Does a warrant for a home reach the car outside?
No. Warrant search area limited to what specified in the warrant itself.
Can information from an informant can be enough reason to get a search warrant if the affidavit doesn’t say why the informant is reliable or how he got his information.
Prob not. Should prob corroborate the information.
____ ____ : “are based on affidavit showing PC that at some future time, certain evidence of crime will be located at a specified place. This sort of warrant is a “triggering condition” which has not yet occurred”
Anticipatory warrants
2 ways to challenge warrants?
- Facial challenge
- Truth & veracity
“Under the plain view doctrine, must the discovery of an item be inadvertent for police to make a warrantless seizure of the item?”
No. “police can seize an item that is in plain view without a warrant, even if finding the item was not inadvertent, so long as the police have the legal right to be where the item is found.” [Horton v. CA]
Plain view exception to 4A. The Officer must be lawfully in the space. How does this square with seeing contraband through window of home from the sidewalk?
No. Not valid PV.
“Under the Fourth Amendment, may the government conduct a warrantless search of the contents of a cell phone seized incident to an arrest absent exigent circumstances?”
No. “Police officers generally must secure a warrant before conducting a search of the contents of a cell phone seized incident to an arrest.”
“Does a strip search in jail for those who commit minor offenses requires reasonable suspicion?”
No. Deference is given to judgment of COs. Safety of inmates is also important plus not allowing contraband into the prison.
Does a car have to be moving for it can be searched under Carroll?
No, just need PC. [Vehicle must be inherently mobile]
Does the Carroll exception apply only to the car, or also the items inside the car?
Both. The SC has provided that there is less privacy in a vehicle and gov. needs to regulate vehicles in use on public roads. Carroll was expanded to include containers in CA v. Acevedo.
Does the automobile exception [Carroll] to the warrant requirement of the Fourth Amendment allow a warrantless search of a vehicle located within a home or its curtilage?
Nope
The question is whether the police need a warrant to search a container in a moving car if they think the container, but not the car, has illegal items.
No. Having 2 different rules for car and containers would cause confusion and lead to more extensive car searches.
CA v. Acevedo
T/F) A POs warrantless inventory search of closed containers inside an automobile, conducted pursuant to an established inventory policy, does not violate the Fourth Amendment to the U.S. Constitution.
True. Must be in GF though.
PO may search a vehicle incidental 2 arrest if the arrestee is (1) within reaching distance of the passenger compartment at the time of the search or….
(2) it is reasonable to believe that crime-related evidence is located in the vehicle. [Gant]
CA v. Hodari set a new rule for “seizure” under 4A. What is it?
- Suspect submits to authority; or
- Is physically restrained by PO
- Chief Justice Rehnquist defines Reasonable Suspicion.
- Judged by what standard?
- “RS involves something more than ‘inchoate opinion or hunch, but considerably less proof of wrongdoing by a preponderance of the evidence.”
- Totality of the circumstances
According to Hiibel, does the Constitution allow the subject of a valid Terry stop [based on RS] to refuse to identify himself.
No. Valid if initial Terry stop was valid. Plus, giving a name does not incriminate.
The question is, can a police officer stop someone on the street and search them for weapons, even if he doesn’t have solid proof that they’ve done something wrong? He only has RS they may have a weapon.
Yes. In Terry v. Ohio, it is ok if the PO has RS, a standard which is less than PC. Any subsequent search must be based on that initial RS.
Under Terry, in justifying the frisk, PO must be able to what?
Police officer must be able to point to specific and articulable facts, which, taken together with rational inferences, warrant that intrusion. [Amounting to RS]
For judges reviewing Terry frisk, it is judged against an _____________ standard:
IE: Would the facts available to the officer, at moment of seizure, warrant a man of “reasonable caution” in the belief that the action taken was appropriate?
Objective analysis for Terry frisk.
T/F) PO can stop and search for weapons [frisk] with just reasonable suspicion.
True. Terry v. Ohio. Frisk must remain within scope of initial RS. The search is limited to weapons. Officer must be able to articulate facts that led to intrusion of privacy.
RS is probable cause light.
PC = fair probability
RS =
RS = fair possibility
Terry frisk must be based on RS that….
….person is armed and dangerous.
Can mobile homes be searched under the auto exception?
Yes if they are setup to be moved quickly.
Can you apply auto exception to a car parked in the driveway of a home?
No, not if deemed to be in the “curtilage.” [Collins v. Virginia]
- What must officer have for traffic stop??
- To search a car?
- To frisk a person?
1.RS
2. PC or consent
3. RS [Terry] of weapons on person
Can a third party give consent?
Yes. Rodriguez
If driver consents to search and PO finds drugs in brown paper bag. Too far? Let’s say the driver just said, “Yea you can search.” and nothing else.
No, the driver did not effectively limit parameters of the search. If he had said no, don’t open that bag – theoretically, the PO should stop.
For consent to search exception to apply…
1.
2.
3.
- Lawful leading up to [the stop]
- Actual or apparent authority to consent given
- Objective reasonableness of search [stay within parameters]
If a consent is given after a PO implies that he has a warrant?
Implied coercion and consent is not valid.
T/F) Police must obtain explicit consent to go beyond normal parameters of car search. IE: Under the hood after consent given.
True
Can police look under hood of car after consent given to search?
No. Too far. [People v. Gomez] Search is limited to those areas where PO reasonably has PC.
In one person in home consents to search but another says no, can PO come in?
No. Georgia v. Randolph
Under the Fourth Amendment, may police conduct a warrantless search of a home if one occupant gives consent to search the premises while another occupant is present and is expressly refusing to consent to the search?
Exceptions?
- No. Georgia v. Randolph
- Yes, if the objecting occupant is not present, may search. [Fernandez v. CA]
T/F) One occupant’s consent to search a premises is effective under the Fourth Amendment as long as no other occupant who objects to the search is NOT physically present.
True. [Fernandez v. CA]
T/F) a police officer can search a car’s passenger area if they reasonably think the suspect is dangerous and could get a weapon.
True. Michigan v. Long
T/F) If a lawful traffic stop, PO can ask passenger to get out of car.
True! [Brightline rule]
Does intrusion into pants pocket exceed scope of Terry?
Yes unless you felt a weapon in the pocket.
4A triangle:
1. Arrest =
2. Terry =
3. Consensual encounter =
- PC
- RS
- Nothing
In ______________, 392 U.S. 1 (1968), the Court recognized that a police officer may be (1) reasonable in briefly stopping a suspicious person to investigate possible criminal behavior even if the officer does not have probable cause. The Court also recognized that an officer making a reasonable investigatory stop who is justified in believing that a suspect is armed and dangerous may (2) conduct a limited protective search for concealed weapons.
Terry v. Ohio
“A police officer can search a suspect for hidden weapons if they think the suspect is dangerous and they are making a reasonable stop to investigate.” T/F)
True. Adams v. Williams [Rehnquist] affirming Terry v. Ohio.
Is stickers alone on a car enough to justify Terry?
No.
When can schools search a kid? [Safford]
RS that:
1. Violating law
2. Search not UR intrusive [strip]
Under Mendenhall, when is a person seized?
When a person would reasonably think they can’t leave police custody. Analyzed under totality of circumstances test.
If person has been seized, next question is what?
Have they been arrested [PC] or is this a terry search? [RS]
This case expands on Mendenhall and says a person is seized when:
1. Submits to PO authority or;
2. Physically restrained
Hodarri. Now, person is seized if (1)reasonable person believes so [Mendenhall] AND (2) Submits to authority or is physically restrained. [Hodarri]
Person is seized even if physical restraint is not successful. Torres v. Madrid
Is unsuccessful force to restrain still a seizure? IE: Shooting at a purp who flees and gets away.
Yes. Torres v. Madrid.
T/F) The use of physical force with intent to restrain is a seizure even if the force used does not successfully restrain the subject.
True. Torres v. Madrid
Is PO iding as Police a seizure?
No. We need a submission to authority or physical restraint, even if only attempted restraint.
T/F) If person doesn’t want to answer Qs PO must let them go, if not, we have escalated to a seizure, requiring at least RS.
True
Seizure cases:
1. Mendenhall =
2. Hodarii =
3. Torres v. Madrid =
- Seized when RP believes seized.
- Seized when (1) Submission or (2) Physically restrained.
- Seized when physically restrained EVEN IF unsuccessful attempt at restraint.
Consent cases: Valid when / unless…
1. Rodriguez =
2. Randolph =
2. Fernandez =
- Rodriguez = apparent authority consent OK
- Randolph = Conflicting consent(s) NOT ok
- Fernandez = Exception to Randolph, OK if non-consenting person not physically there.
“a police officer can’t use deadly force to stop an unarmed person from running away just because the officer might not be able to catch him right away. The officer can only use deadly force if he thinks the person could seriously hurt or kill others. “
What case gave this bullshit holding in 1985? The dude has just robbed a home at night and was fleeing from police. Most certainly a threat to others as he just forced his way into a home.
Tennessee v. Garner
Per what case?
“Police presence, such as a cruiser, can establish authority – but that ALONE is not enough.”
Michigan v. Chesternut
“___________ involves something more than ‘inchoate opinion or hunch, but considerably less proof of wrongdoing by a preponderance of the evidence.”
Chief Justice Rehnquist, the GOAT defining Reasonable Suspicion.
According to CJ Rehnquist, RS should be determined how?
Totality of the circumstances.
” Under the Fourth Amendment, the police can seize an item that is in plain view without a warrant, even if finding the item was not inadvertent, so long as the police have the legal right to be where the item is found.”
Horton v. CA. Exception to warrant requirement of 4A. [Plain view Doctrine]
Limits on Horton v. CA for PV exception to warrant requirement?
Yes. Arizona v. Hicks = Cannot manipulate the scene.
Can you manipulate the scene and still claim PV doctrine exception to warrant?
No, Hicks. [AZ v. Hicks]
[Plain-view]
- Under _____, officer may seize items in plain view if lawfully in the space.[Lawful vantage point, lawful right of access] **Does not have to be inadvertent. **
- Under ____, cannot manipulate the scene.
- Horton
- Hicks
T/F) Search must end when objects found.
True. Horton
Is “Inadvertence” required under Horton?
Nope
May a police officer performing a pat-down search for weapons seize other contraband detected during the search if the identity of that contraband is not immediately apparent?
No, MN v. Dickerson.
Under _________, police officer performing a pat-down search for weapons may NOT seize other contraband detected during the search if the identity of that contraband is not immediately apparent from the frisk.
MN v. Dickerson. Plain touch doctrine, analogous to plain view.
Immediatley apparant requirement comes from what case?
MN v. Dickerson.
” A police officer can stop and frisk a suspect if they think the suspect is dangerous, but they can only look for weapons. If they find other illegal items, they can only take them if it’s clear what they are. In this case, the officer knew Dickerson didn’t have a weapon when he felt the object in his pocket.”
MN v. Dickerson. It must be “readily apparent” what the item is.
IE: If by touch alone you know its contraband, then you can grab it from pocket.
Under MN v. Dickerson, what is the exception to the “readily apparent” requirement?
“Plain touch.” Which is analogous to Plain view.
T/F) During valid Terry pat-down/frisk, if an officer can determine by touch alone that object is contraband, it may be seized by reaching inside pocket.
True. “Plain-touch” exception to the MN v. Dickerson holding.
Plain-touch doctrine demonstrated in what case?
MN v. Dickerson.
All arrests, with or without warrant, must be based on PC that person has….
- Committed a crime; or
- IS committing a crime currently
Per ____, police may arrest without warrant if:
1. Felony committed; or
- Currently committing felony/misdemeanor in officers presence.
- US v. Watson, 1976
- Atwater
Arrest made w/o warrants [Watson] will be reviewed by _______ and must be done within ____ hours of arrest.
- Magistrate
- 48 hours
Expanding on Watson, “An officer with PC to believe any crime has been committed in HIS PRESENCE may arrest the suspect without violating the Fourth Amendment.”
This includes misdeamenors. [T/F]
True. [Atwater v. City of Lago]
Under ______, PO may arrest persons without a warrant for minor crimes as well as felonies, thus expanding scope of Watson
Atwater
T/F) When an officer has PC to believe a person has committed even a minor crime in his presence, then the “arrest is constitutionally reasonable.
True. [Atwater]
Can the police enter a suspect’s home without a warrant to make a routine felony arrest?
No, Payton v. NY 1980.
- Under _____, PO must have (1) arrest warrant for person in home and (2) reason to believe in the home.
- What if no warrant?
- Payton [Payton v. NY]
- Assuming PC for arrest, try to get consent to enter home.
What if police have arrest warrant for Alpha and reason to believe home?
Police can: [Yes or no]
1. Force entry [if refused]
2. Search home for Alpha
3. Seize in contraband found in plain view
4. Once arrested, keep searching.
1-3 = yes.
4 = no. Must stop after getting Alpha.
Can police with arrest warrant for alpha enter bravos home?
No, not without search warrant for bravos home to look for alpha.
Police can search persons under “SILA” doctrine. What about car?
Gant [2009] governs.
1. Unsecured arrestee within reach of passenger compartment; or
2. Reasonable to believe evidence in car relevant to crime of arrest
Phones incident to arrest? “SILA”
May be seized but not searched. Need search warrant for the phone.
No warrant to search person during booking or their personal items.
Case?
Illinois v. Lafayette
Under ________, booking searches of arrestee’s personal items at the station following an arrest are okay; no warrant required.
Lafayette, requires no level of suspicion.
Under _____, can search mobile homes under Carroll exception if inherently mobile.
Carney
Under ______, police may search an auto and the containers in it where they have PC.
CA v. Acevedo [Same rule for cars and containers]
Who bears burden to prove valid consent?
Government
Consent must not be given as result of…
Duress or coercion, must be “freely and voluntarily given.”
Are police required to inform suspect of right to refuse consent?
No. But if police do, this is another factor in the TOC of determining whether the consent was “freely and voluntarily” given.
Can consenting persons set limits on search?
Yes. FL v. Jimeno
Can persons withdraw consent?
Yes. BUT, if police see something that gives him independent grounds to proceed before consent withdrawn, then its too late for suspect to withdraw.
[CALI]
T/F) The search of an automobile incident to arrest is not limited to instances when owners or drivers of the vehicles are arrested. Instead, occupants and recent occupants of the vehicle provide the factual basis for searching vehicles incident to arrest.
True
[CALI]
T/F) A search of a vehicle incident to arrest is limited to the passenger compartment and any containers therein. Therefore, officers may not lawfully search the trunk during a search incident to arrest.
True
[CALI]
T/F) During a lawful search incident to arrest, the officers may search the entire passenger compartment of the vehicle including any containers therein.
True
[CALI]
T/F) the search of a typical automobile incident to arrest covers the passenger compartment and any containers therein but not the trunk.
True
[CALI]
T/F) If the officer is conducting a pre-tow inventory, but failing to actually tow the vehicles, then that gives rise to a strong suspicion that he may not be using the inventory search for its intended purpose, and may instead be using it as a ruse to search for evidence of a crime.
True
[CALI]
Auto exception allows PO – if he has PC – to search anywhere in the car. [T/F]
True
[CALI]
SIA for cars – must have RS that evidence of crime in car or person must be within reaching distance of car. Limited to passenger compartments. T/F
True
[CALI]
An officer who has lawfully arrested a person may secure the arrestee’s vehicle and perform an inventory search to determine if the vehicle contains evidence of criminal activity. (T/F)
False
[CALI]
T/F) An officer who has lawfully arrested a person may secure the arrestee’s vehicle and inventory its contents to protect the arrestee’s property from theft, to protect the police from claims or disputes as to the property, and to protect officer safety.
True
[CALI]
An officer stop D’s vehicle, arrests him and searches his trunk for evidence of recent illegal weapon sales.
A. Automobile exception
B. Search incident to arrest
C. Inventory search
A. The automobile exception permits an officer to search anywhere in the vehicle where evidence might be located, including the trunk.
B. is wrong b/c this is limited to passenger compartment, not trunk.
C. is wrong b/c this is not permissive use to look for evidence.
[CALI]
An officer stops D’s vehicle and arrests him. After D has been transported to the police station, the officer searches the entire vehicle and the containers therein for any valuables. Once the search is complete, the officer completes a standardized form describing the contents of the vehicle and its containers.
A. Automobile exception
B. Search incident to arrest
C. Inventory search
C
[CALI]
An officer stops D’s vehicle and arrests him. After the vehicle is towed to the police station, the officer searches the entire vehicle for evidence related to the crime for which D was arrested.
Automobile exception
Search incident to arrest
Inventory search
A. He is searching for evidence.
[CALI]
An officer stops D’s vehicle and arrests him. After the vehicle is towed to the police station, the officer searches the entire vehicle for evidence related to the crime for which D was arrested.
Automobile exception
Search incident to arrest
Inventory search
A
For consents, the Court held that voluntariness is the requirement and that it is to be judged under the totality of the circumstances standard.
Schneckloth v. Bustamonte
T/F) The PV doctrine only permits officers to seize items that are immediately apparent as contraband. No further searches of the contraband may be conducted at this point. [IE, no testing or doing further searches on the contraband.]
True, permitted to seize only.
T/F) A valid arrest warrant allows an officer to enter the home of the suspect to carry out the arrest.
True
Lawful or unlawful?
“Assume that a husband and wife occupy a home as co-tenants. An officer arrives on the scene of a domestic violence incident while both the husband and wife are still present. When the officer requests consent to search the entire home, the husband says, “NO!” while the wife says, “Yes.” The officer proceeds to search the home and finds evidence of drug trafficking in an upstairs bedroom.”
Unlawful. [Randolph]
An officer responding to a burglary alarm where the door is open will usually be justified in entering the premises under what exception?
Exigent circumstances
Under plain-view and plain-touch, PO must have:
1)
2)
1) Lawful vantage point
2) Lawful right of access to item
T/F) The plain touch doctrine, like the plain view doctrine, requires that the item be immediately apparent as contraband. The fact that the officer has to manipulate the item through D’s clothing indicates that its nature is not immediately apparent to the officer.
True. Must be readily apparent and Officer’s may not manipulate pockets.
T/F) Due process requires that a preliminary hearing be held in every case.
False. Preliminary hearings not held in every case.
T/F) True or False. Following the preliminary hearing, assuming that the trial court judge finds that probable cause exists, in most states the prosecutor will file an “information” with the trial court.
True, this is the formal charging document.
T/F) If a police officer has reasonable grounds for making an arrest, he can enter the arrestee’s home without a warrant in order to effectuate the arrest.
False. Payton v. NY.
T/F) True of False. When really minor offenses are involved (e.g., failure to wear a seatbelt), the police are precluded from making warrantless custodial arrests.
False. Atwater
True or False. When a police officer has probable cause to believe that an individual has committed a felony, but the individual is in another person’s house, the officer can enter the house without a warrant to effectuate the arrest.
False. Need search warrant. Steagald v. US.
T/F) True or False. The search incident to legal arrest exception allows the police to search only the area within the arrestee’s immediate control.
True. Chimel v. CA
T/F) True or False. When the police arrest someone who is driving a vehicle, the search incident to legal arrest exception provides the police with the automatic authority to search the passenger compartment of the vehicle.
False. This is old rule. Under Gant, passenger need be within lunging distance [unrestrained] OR have RS of evidence there.
T/F) Booking searches can require person to submit to DNA testing.
True [Maryland v. King]
T/F) Booking search must be conducted within 30 min of arrival.
False.
This case said booking searches permit DNA testing.
Maryland v. King
True or False. The automobile exception only applies to automobiles so that mobile homes are treated like houses rather than like automobiles.
False. California v. Carney
True or False. Under the automobile exception, the police are authorized to search the entire vehicle.
False, only those parts where they have PC for crime or evidence of it.
True or False. When the police search a vehicle under the automobile exception, they are prohibited from opening containers that they find in the vehicle.
False. California v. Acevedo
T/F) The police are not required to have “probable cause,” “reasonable suspicion” or a “clear indication” in order to conduct an inventory search.
True
T/F) Even a non-custodial arrest requires a finding of probable cause.
True. US v. Watson
True or False. Before an individual can be asked to consent to a search or seizure, he/she must be informed of his/her right to refuse consent.
False. Bustamonte
True or False. When the police ask a husband and wife for permission to search their home, and both of them are present, and one of them consents, but the other adamantly refuses to give consent, the police are free to enter the house.
False. Randolph.
True or False. A warrantless search is constitutional when the police reasonably, but erroneously, believe that the person who consented to their entry is a resident of the premises.
True. Rodriguez
An “__________ exception” to the warrant requirement allows government agencies to conduct searches without a warrant in certain situations related to regulatory compliance, typically when inspecting businesses or properties subject to specific industry regulations, where the primary purpose is to ensure adherence to safety or health standards, not necessarily to gather criminal evidence;
Admin exception
T/F) Warrants are required for admin. searches.
True, unless it is a “highly regulated business,” then no warrant required.
Admin exception: Are hotels and motels “highly regulated” businesses?
No.
T/F) The police are free to stop and frisk anyone that they find acting suspiciously.
False. Must suspect either (1) armed and dangerous or (2) criminal activity is afoot.
T/F) True or False. When the police have a reasonable suspicion that an individual is involved in criminal activity, the police may conduct an investigatory stop.
True. Mendenhall
T/F) True of False. A police officer always has discretion to stop a motorist simply to check the driver’s license and car registration.
False, must have RS involved in crime, whether minor traffic violation or higher level crime.
Police can conduct a protective sweep when they have _______ ________ that someone in a residence is a danger to the officers or others.
Reasonable Suspicion. Maryland v. Buii.
T/F) When the police witness a suspect ingesting what appear to be heroin capsules, they may (without a warrant) arrange for the suspect’s stomach to be pumped.
False. Rochin v. CA.
T/F) Without certain hallmark warnings regarding the right to remain silent and the right to counsel, statements made during custodial interrogation are inadmissible at trial.
True. Miranda v. Arizona
T/F) In order to make an arrest, the police are required to obtain a warrant.
False. [Atwater]
T/F) The arrestee will be formally charged during booking process.
False.
T/F) Due process requires that a preliminary hearing be held in every case.
False. “Counsel can waive the preliminary hearing, and prosecutors can sometimes opt to proceed by indictment.”
T/F) When constitutional interpretation results in announcement of a new rule of law the U.S. Supreme Court generally allows the proponent of the rule to benefit from the new rule.
True
True or False. When constitutional interpretation results in announcement of a new rule of lawthe U.S. Supreme Court generally applies that rule to defendants whose cases became final before the rule was announced.
False
True or false. When constitutional interpretation results in announcement of a new rule of law the U.S. Supreme Court generally applies that rule to defendants whose cases are still on direct review.
True!
The Fourth Amendment requires a warrant. [T/F]
False. The Fourth Amendment imposes a warrant preference.
Seizure triangle: What cause necessary?
1. Custodial arrest
2. Terry stop & Terry frisk
3. Consensual encounter
- PC for arrest warrant; or PC that crime has been committing / is being committed currently.
- TS is RS that person involved in criminal activity. TF is RS that person armed and dangerous.
- No cause needed also not a seizure
Terry stop =
Terry frisk =
What cause?
TS = RS that person involved in criminal activity.
TF = RS that person A&D.
Terry authorized two types of PO actions.
- Stop
- Frisk
Requirements of a valid terry “stop?”
- RS person involved in criminal activity
- Stop is investigative in nature 3. Stop is brief
T/F) Valid TF provides that “if an officer feels what she has reason to believe is a weapon, she can reach into the person’s clothing to remove the object.
True
Objective standard asks what?
Would the facts / circumstances available to officer lead a man of reasonable precaution to believe that action taken was appropriate?
Is “absolute certainty” require for Terry stop / frisk?
No.
T/F) There is a “firearms exception” that allows for dispensing with RS analysis.
False. Florida v. JL
Terry stop also known as what?
Investigative stops
T/F) Traffic stops are seizures of both the driver and passenger.
True. Bredlin v. CA
ROL: “The passenger of a vehicle in a traffic stop is seized within the meaning of the Fourth Amendment.”
Brendlin v. CA
When is a person seized?
(1) When a reasonable person would feel not free to leave [Mendenhall] AND (2) the person actually submits to the officer’s authority. [Hodarri]
Further, if officer uses physical force, this constitutes a seizure EVEN IF person is not subdued. [Torres v. Madrid]
Do officers “seize” someone by merely approaching them on the street or in public?
No.
Do Officer’s seize someone merely by identifying themselves as a PO?
No. Police presence itself is not enough. [Chesternut]
Does asking a person if they want to answer some questions constitute a seizure?
No, but if person does not want to answer so tries to leave and PO stops them, now this is a seizure.
During a consensual encounter, when may an officer search or frisk the person. Recall, no RS or PC for consensual encounters.
They must consent UNLESS officer can develop RS or PD during the encounter.
____ ____ = considerably less proof of wrongdoing by a “preponderance of the evidence.”
Reasonable suspicion
RS and PC both analyzed under what standard?
Objective and totality of the circumstances
This case shows that investigative [Terry] detentions must last (1) no longer than necessary and should involve (2) least intrusive means reasonably available.
Florida v. Royer 1983
Time limits on Terry?
No hard and fast rule. FL v. Royer says we should keep it short though.
If PO has RS to stop under Terry but then moves purp to station for fingerprinting or perhaps moves to station to interrogate… permissible?
No. Need PC. Suspect has been de facto arrested. Dunaway v. NY.
“In order to lawfully bring a suspect into formal police custody and interrogate him at the police station, the police must have probable cause. “
Dunaway v. NY [1979]
In this case, Officer had RS for Terry stop but then took the guy to station to interrogate. Not permissible. It became de facto arrest.
Dunaway v. NY
Terry stops must end when reason for Terry stop is over… but the “_____ ______ “ is determined by seizure’s mission.
“Tolerable duration” US v. Rodriguez
Can Officers rely on observations of other officers?
Yes. [US v. Hensley]
This case says that PO may rely on observations of other officers.
US v. Henley, relying on wanted flyer.
RS for TS according to lawton?
Reasonable “ARTICULABLE” suspicion that person is involved in criminal activity.
Can PO manipulate item inside pants pocket during TS?
No. MN v. Dickerson. “Plain-touch.”
Frisk limited to what?
Outer garments
When can officer remove what he believes to be a weapon during a frisk
When he “reasonably believes” it is a weapon – without manipulating the item in the pocket.
Define the “Seizure” rule.
Would a reasonable person, under the circumstances, feel free to leave?
Per Watson, Officers can make arrest without warrant in what location?
Public spaces. Still need warrant for the home.
Define PC
Enough particularized facts to lead a person of RP to find fair probability that a crime has been committed.
Analysis for PC?
- Objective
- Totality of the circumstances
- “Enough particularized facts to lead a common sense person to find fair probability that a crime has been committed.”
Anonymous tips carry particular weight when?
Corroborated or predictive in nature. [Illinois v. Gates]
RS analysis?
TOC under objective lens
T/F) Pursuant to a lawful stop, an officer may order person out of the truck without
further justification, including for minor traffic stops.
True
Is anonymous tip about illegal activity sufficient to issue search warrant?
No. Must be corroborated. Illinois v. Gates
T/F) When PO have an arrest warrant, they may enter suspect home to make arrest but they may NOT search other rooms incidental to arrest.
Bonus: Case?
Bonus: Exceptions to the case rule?
True. Broader sweeps of home require search warrant or protective sweep exception.
B1: Maryland v. Buie
B2: Protective sweeps allow search of other rooms for dangerous persons.
Exception to the Marland v. Buie rule?
Protective sweeps allow search of other rooms for dangerous persons.
What case showed that you can’t search other rooms in a home incidental to valid arrest conducted pursuant to an arrest warrant?
Maryland v. Buii
RS or PC to conduct Protective sweep exception to Maryland v. Buie?
RS.
Are officers permitted to seize contraband found in P/V when conducting protective sweep?
Yes
When does AZ v. Gant apply?
- Unsecured near vehicle after arrest
- RS to believe evidence of crime in car
Does Gant allow for search of a trunk?
No.
T/F) Cop may search person [including pockets] for weapons and evidence after lawful arrest.
True!
“Incident to a lawful arrest, a warrantless search of the area in possession and control of the person under arrest is permissible under the Fourth Amendment.”
Chimel v. CA
Under Chimel, PO may search immediate area under person control, including pockets. This means officer may remove an envelope from pocket and even search it.
True.
Does Chimel permit search of a cell phone?
No.
For cases asking if POs engaged in “search” by looking into persons backyard from high vantage point or looking into persons home, what case is helpful and what is analysis?
Katz.
(1) is there an actual [subjective] expectation of privacy; and
(2) is that expectation reasonable.
Curtilage: Fencing it in shows expectation of privacy but not reasonable to expect privacy from high vantage points.
True or False. Under the automobile exception, the police are authorized to search the entire vehicle.
False. Its a powerful search tool but constrained to areas where PO has probable cause.
True or False. When the police search a vehicle under the automobile exception, they are prohibited from opening containers that they find in the vehicle.
False. CA v. Acevedo
T/F) Inventory exception requires PC.
False. Conducted whenever a vehicle is lawfully impounded.
True or False. Before an individual can be asked to consent to a search or seizure, he/she must be informed of his/her right to refuse consent.
False. Bustamonte
True or False. When the police ask a husband and wife for permission to search their home, and both of them are present, and one of them consents, but the other adamantly refuses to give consent, the police are free to enter the house.
False. Randolph.
Terry stop also known as what?
Investigative stop
What can police search incidental to lawful arrest?
Case?
- Person
- Immediate area
- Pockets
- Items [not cell phones]
Case = Chimel
Katz test?
- Is there a REOP
- Is it subjectively reasonable
If yes, Officers have engaged in a 4A “search.”
Pursuant to auto exception, if the police have PC….
They may stop car and search, including containers, any area they have PC contraband / evidence may be located.
Can the Terry frisk be used to pat down for evidence?
No. Pat down for weapons only.
A dog sniff of closed luggage is not a Fourth Amendment search that requires a warrant or probable cause. T/F
True. US v. Place. This is permissive.
“Surveillance of a car by beeper is equivalent to visual surveillance of the car on public roadways” > In this case, that quote used by Rehnquist to justify PO actions finding not a 4A search.
US v. Knotts
T/F) Prior case law makes clear that a person’s expectation of privacy is greatly reduced in a car.
True. US v. Knotts
A party unknowingly receiving a container containing a tracking device does not constitute a Fourth Amendment seizure…
BUT, when does this become an UR 4A “search?”
….The continued monitoring of a tracking device inside multiple private places constitutes a Fourth Amendment search. [US v. Karo]
Following the holding in Knotts, this case showed that the continued monitoring of a tracking device inside multiple private places constitutes a Fourth Amendment search.
US v. Karo
T/F) Law enforcement’s use of sense-enhancing technology to see details of a private home that would not be discoverable without physically entering the home constitutes a Fourth Amendment search.
True, Kyllo.
A search made under an otherwise valid warrant containing a mistake does not violate the Fourth Amendment if the police acted ___________ .
“Reasonably.” [Maryland v. Garrison]
T/F) The Fourth Amendment generally requires the police to “knock and announce” themselves, but the requirement does not apply when the police have a reasonable suspicion that their compliance would create either a threat of physical violence or a danger of the destruction of evidence.
True. Wilson v. Arkansas
Does the 4A always require K&A or “generally” require K&A?
Generally. There may be exigent circumstances to NOT knock and announce. [Wilson v. Arkansas]
This case showed that persons have REOP for phone conversations from home but this does NOT include what numbers they dial to and from.
Smith v. Maryland
“It is public knowledge that the phone company keeps records of people’s outgoing calls so when people make calls they are voluntarily making public who they call.”
Smith v. Maryland. You have REOP only for the conversation itself, not the numbers behind the calls.
Is the front porch protected curtilage?
Yes. Florida v. Jardines
Which case shows that the front porch is a protected curtilage area?
Florida v. Jardines
2 cases for plain view?
Horton and Hicks.
The “plain feel” doctrine requires that the “incriminating character” of an object must be ____ _____ to an officer, which requirement is derived from the “plain view” doctrine.
Immediately / readily apparent [MN v. Dickerson]
Per Watson, PO may make a warrantless arrest where?
Public spaces
- Defining RS in Lawton class?
- How to analize above?
- RAS “Reasonable articulable suspicion” that person is armed and dangerous or that person is involved in criminal activity.
- TOC under objective lens > “Enough particularized facts to lead a common sense person to find ‘fair possibility’ that XYZ.”
Accessing phone location data is a 4A search.
Carpenter v US
Initial appearance in court must occur when?
48 hours after arrest
Preliminary hearing?
Determine if PC existed.
Defendant can challenge state witness + motion to suppress evidence.
This is the formal reading of charges in court.
Arraignment. If D pleads not guilty it moves to pre trial motions.
- A PC check and review of evidence before actual trial.
- Formal charges and plea
- Preliminary hearing
- Arraignment
PH comes first in cases not involving GJs.
- Tracker on car is search.
- Tracker phone location is search.
- Jones
2.Carpenter
Showed that you need a warrant to search through phone.
Riley
