Criminal Procedure (2) Flashcards
What does the 4th amendment say?
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but ok probable cause, supported by Oath and affirmation, and particularly describing the place to be searched and the persons or things to be seized
When does a person have standing under the 4th Amendment?
They have an expectation of privacy in the place to be searched or the items to be seized.
Only searched conducted by who are protected under the 4th amendment?
Only government action.
*gov may not circumvent the 4th amendment by enlisting private individuals to conduct a search.
*private individuals can do on their own with no 4th amendment violation.
When does an unreasonable search or seizure occur?
When the government (1) invades a place protected by a reasonable expectation of privacy or (2) physically intrudes upon a constitutionally protected area (persons,houses,papers, or effects) for the purpose of gathering information.
What are some technological devices which use of these devices constitutes a search under the 4th amendment?
- attaching device to someone’s body without their consent
- collecting cell-site location info records from wireless carries to track their whereabouts
- gps tracker on someone’s car
- use of sense-enhancing technology that is not in use by general public to explore details of a dwelling unviewable without intrusion
- ease-dropping on public pay phone
*** technology available to the public is NOT a search.
Who can claim a 4th amendment right to the home?
People with the immediate right of possession of the dwelling which as apt or dormitory or hotel.
What is the cartilage and is it protected under the 4th amendment?
The area immediately surrounding the home and yes it is covered under the 4th amendment.
How do you determine if an area is within the cartilage of the home?
Consider four factors:
- Proximity of the area to the home (porch, patio, backyard)
- Is the area included within an enclosure surrounding the home
- What is the area used for (traditional residential purposes?)
- What steps have been taken by the resident to protect the area from observation by a passerby?
Are open field protected under the 4th amendment?
Not protected. No reasonable expectation of privacy. EVEN IF you have no trespassing signs and fences.
This area includes the remaining unprotected real estate that is not the cartilage.
Does an overnight have an expectation of privacy under the 4th amendment?
Yes. A reasonable expectation of privacy in at least the area of the home to which the guest has permission to enter.
**could of house does not count.
Business invitee has no expectation of privacy.
Business premises can have administrative searches. Prisons are not protected under 4th amend.
***note Trespass by the gov. onto property does not necessarily make a 4th amendment violation. Ex: no expectation of privacy in open fields even if it would be a common-law trespass.
What must a PO have in order to stop an automobile?
Articulable Reasonable Suspicion of a violation of the law.
*911 call provides RS
Stopping a lm automobile is a seizure of the driver and passengers.
What is needed for a checkpoint to be constitutional?
Must be based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles.
No reasonable individualized suspicion required.
Which roadblocks are constitutional and unconditional?
- roadblocks for alcohol is ok
- roadblocks for drugs unconstitutional
- Border patrol checks to enforce immigration is ok and they can stop anyone.
** note on boarder checks, if a check is NOT AT THE BORDER all cars can be stopped under immigration law but you cannot randomly select cars without a particularized and objective basis.
When are checkpoints to search for a witness reasonable?
As long as:
- The checkpoints primary law enforcement purpose is to elicit evidence to help them apprehend other individuals (not car occupants)
- The stop advanced a public concern and
- The police appropriately tailored their checkpoint stops to fit important criminal investigatory need and to minimally interfere with the liberties of the 4th amendment
Persons and their attributes. What is
Protected?
Physical characteristics unprotected (handwriting, voice sample, DNA)
DNA is a routine part of booking which is reasonable under 4th amendment.
Blood is protected and requires warrant.
No expectation of privacy in conversations with government informants.
How is the constitutionality of blood samples determined?
Reasonableness of the blood draw is determined on a case-to-case basis and based a the totality of the circumstances.
When is wiretapping constitutional?
When one party consents to the wiretapping.
When is the use a ‘fly over’ a search?
- constitutional if in navigable airspace.
- helicopter: viewing I a search if at an altitude from which viewing was rare in the local area
When is a canine stiff unconstitutional?
If it involves a physical intrusion onto constitutionally protected property.
Not a violation in public.
Without physical intrusion the use of drug sniffing dogs does not violate a reasonable expectation of privacy.
Is there an expectation of privacy in information voluntarily provided to 3rd parties?
No.
Ex: bank teller, telephone company.
***cannot use 3rd party records to detect a persons movements for at least 7 days
What is a field test and is it constitutional?
A test performed on a substance to determine if the substance is contraband is not a search under the 4th amendment.
What is the search warrant requirement?
A valid warrant must be issued by a neutral and detached magistrate based on PC and must be supported by oath or affinity and must described the places to be searched and the items to be seized.
What is probable cause?
More than a reasonable suspicion that evidence of illegal conduct will be found. Does not require certainty. Can be found by:
- A POs personal observations
- Information from a reliable, known informant than can independently be verified.
- Evidence seized during stops based on RS,
- Evidence discovered in plain view
- Evidence obtained during consensual searches
When can a (D) attack the truthfulness of an affidavit?
(D) can challenge a facially valid warrant only when the (D) can establish, by a preponderance of the evidence that (1) the affidavit contained false statements that were made by the accusing knowingly, intentionally, or with reckless disregard for their truth; and (2) the false statements were the necessary to the findings of PC.
When can PC be found through an informant?
Courts with use the TOC to determine whether the information provided by a police informant is sufficient to create PC.
** no need to know their identity
What is the particularity requirement for a search warrant?
The warrant must describe with particularity the place to be searched and the items to be seized.
What is an anticipating warrant?
Can use a warrant if there is PC to believe that a triggering event will occur and if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Can a warrant search a 3rd parties property who is not apart of the crime?
Yes
How should a warrant be executed?
By a PO
Timely
Knock and announce
What happens if a PO does not knock and announce?
PO should knock and announce his presence before entering.
Failure does not require the suppression of evidence.
Might have exceptions to enter without knocking and announcing due to belief of danger or destruction of evidence.
What is the plain view doctrine?
Any evidence of a crime, instrumentalities or fruits of a crime or contraband found in plain view while executing a warrant may be seized.
PO seizing but have lawful right to access or observe the item.
Incriminating nature must be immediately apparent without the need to move the evidence
Can you detain people during the execution of a warrant?
PO can temporarily seize all people present to promote officer safety and prevent the destruction of evidence.
May only detain for a reasonable time.
Can pat down putter clothing if PO have RS to believe such persons pose a threat to officers.
CANNOT search inside clothing or personal property (purses etc.)
Can PO question a detained person during the execution of a warrant or does this require Miranda Warnings?
Can question without violating the 4th amendment so long as the questioning does not extend the duration of the search and detention. If it does Miranda necessary.
What is required to get a search warrant authorizing a wire tap?
PO must show:
- it will be limited to a short period of time
- demonstrate PC that a specific crime has been or is about to be committed
- name the person or persons to be wiretapped
- describe with particularity the conversation that can be overheard and
- include provisions for the termination of the wiretap.
- convo must be shown to the court after the wiretap.
- convo in public holds to expectation
of privacy
What is the Search Incident to a Lawful Arrest exception to the search warrant requirement?
Warrantless search is valid if it is reasonable in scope and if made incident to a lawful arrest.
If the arrest is invalid any search made incident is likewise invalid.
** if a suspect is stopped for a traffic offense and give me a citation but not arrested, then there can be no search incident to lawful arrest.
What area can be searched incident to a lawful arrest?
Under he chimed standard, can search the person and the immediate surrounding area (wingspans) from which a weapon may be concealed or evidence destroyed.
When can you conduct a protective sweet of the home?
Incident to a lawful arrest. Limited to visual inspection of those places immediately adjacent to the place of arrest in which a person might be hiding.
What is the timing of a search incident to arrest?
Temporal unity. Search incident to arrest must happen with the arrest.
What is the scope of search for a search incident to a lawful arrest?
Can search pockets and open containers found inside pockets and contains immediately associated with the person (bag, purse, luggage).
- CANNOT search into phone
Does a person have to blow into breathalyzer upon search incident to arrest?
Yes. But cannot draw blood.
States can punish for not blowing but cannot punish for refusal to give blood.
What is the automobile exception to the search warrant requirement?
No warrant is required to search a vehicle if PO have PC to believe that it contains contraband or evidence of criminal activity.
What areas can be searched under the automobile exception?
Anywhere that may contain contraband including trunk and locked containers so long as PO have PC.
What is the reason behind the automobile exception to the warrant requirement?
Automobiles can be moved and people also have a diminished expectation of privacy as automobiles are significantly regulated by the state.
Automobile exception notes:
- Can destroy upholstery and dismantle gas tank if the incriminating evidence could be hidden in those places
- Can extend to passenger and mobile homes
- Can seize evidence in plain view
- CANNOT search a vehicle within the curtilage
Pre-textual stop: can stop a vehicle if they violated the law and later get PC search for drugs or something else.
What containers can be searched under automobile exception?
PC extends to containers and compartments that reasonably could hold the evidence they are searching for. If the PC is only for one container then they can only search h that and not the entire car.
