Criminal Procedure Flashcards
What are the four steps for search and seizure analysis?
1) Is the search and seizure governed by 4th Am? 2) Is search or seizure conducted w/ a warrant that satisfies 4th Am? 3) Is search or seizure conducted w/o warrant satisfying 4th Am requirements? 4) Is evidence obtained through a search and seizure that violates 4th Am nonetheless admissible in court?
What is the analysis for whether the search or seizure is governed by the 4th Am?
First, was the search or seizure executed by a government agent? Second, was there a reasonable expectation of privacy in the area searched or items seized?
What are the two important categories of government agents for bar purposes?
Publicly paid police, on or off duty, AND private citizens if and only if they are acting at the direction of the police. (Private security is not govt agent unless deputized.)
What are the protected areas in which people have reasonable expectations of privacy?
4th Am protects unreasonable searches and seizures of their 1) persons, 2) houses (incl. hotel rooms), 3) papers (personal correspondence), and 4) effects (purses, backpacks). Home based privacy includes the “area of domestic use” immediately surrounding the house called the curtilage.
What is important about SCOTUS’s GPS case?
US v. Jones: case governed by trespass because tracker attached to a vehicle. This is a CL understanding of 4th Am. Trespass = search.
What are the certain categories of items that are sufficiently public in nature that they carry no reasonable expectation of privacy even if they are searched or seized?
Patty Achieved A Glorious Victory Over Her Opponents. Paint scrapings on outside of your car; Account records held by a bank; Airspace; Garbage left at curb for collection; Voice exemplars; Odor (even those emanating from car or luggage); Hand writing; Open fields and what you can see across it.
What do all of the unprotected items have in common?
Knowing exposure to 3d parties.
Who has standing to challenge the search or seizure?
An individual whose personal privacy rights have been invaded.
Does V have standing if she owns the premises searched?
Yes. Always.
Does V who does not own the premises searched but who resides there have standing?
Always.
If V neither owns nor resides in the premises searched but is an overnight guest there, does V have standing?
V always has standing as to areas overnight guests can be expected to have access to.
If V neither owns, nor resides, nor are staying overnight but are merely using someone else’s home solely for business purposes, does she have standing?
No. Never.
If V owns the property seized in the search, does she have standing?
Only if reasonable expectation of privacy in the area from which property is seized.
Do passengers in cars have standing to sue?
Only if they have a reasonable expectation of privacy in the item or area searched or seized. Passenger can always challenge the stop.
What is never sufficient to provide the authority to challenge the search and seizure in court?
The fact that incriminating evidence may be introduced against an individual in court.
What is the three part test for whether the search warrant under which criminal evidence was gathered satisfies 4th Am requirements?
Ask: 1) is the warrant supported by probable cause and particularity (and issued by a neutral magistrate)? 2) If not, did police officers rely on a defective warrant in good faith? 3) Was the warrant properly executed by the police?
What is probable cause?
Requires proof of a fair probability that contraband or evidence of crime will be found in the area searched.
What is admissible in making the probable cause determination?
Hearsay and info obtained thru informant’s tips, even if info is anonymous. Sufficiency of the tip rests on corroboration by the police of enough of the tipster’s info to allow the magistrate to make a “common sense practical determination” that PC exists based on the totality of the circumstances.
What if you get a PC question on the VA essay exam?
Follow SCOTUS 4th Am law. Case-by-case facto oriented analysis determined from perspective of a reasonable law enforcement officer (obj. standard). Note PC may be established as to one person or one place but not as to another. No PC if see hand rolled cigs; Yes PC if dog sniff alerts.
What is particularity?
Search warrant must specify the place to be searched and the item to be seized. Cannot have a general warrant that authorizes a fishing expedition.
What is the magistrate requirement for the search warrant?
Warrant must be issued by a neutral and detached magistrate.
When does an officer’s good faith fail to save a defective search warrant?
Four categorical exceptions: (1) Affidavit supporting the warrant application is so egregiously lacking in PC no reasonable officer would have relied; (2) So facially deficient in particularity that officers couldn’t reasonably presume it to be valid; (3) Affidavit contains knowing or reckless falsehoods that are necessary to PC finding; (4) Magistrate who issued the warrant is biased in favor of prosecution.
If warrant was valid or relied on in GF, how do you know if warrant was properly executed by the police?
(1) Did officers executing the warrant stay w/in terms and limits (i.e. stay w/in scope)? (2) Did officers executing the warrant comply with “knock and announce”?
What does it mean to comply with the warrant’s terms and limitations?
In executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant.
What is the knock and announce rule?
Requires PO to knock and announce their presence and purpose before forcibly entering the place to be searched unless officer reasonably believes that doing so would be futile or dangerous or would inhibit the investigation.
When is failure to knock and announce reasonable/unreasonable?
Reasonable where PC to believe occupant dealt drugs out of home, had violent crim history, and kept weapons at home; unreasonable where meth makers have no violent crime record, no evidence suggesting they were armed, and no risk of destruction of evidence in time it would take to knock.
When is the warrantless search through which criminal evidence was gathered valid under the 8 exceptions to the warrant requirement?
ESCAPIST. Exigent circumstances, SITA, Consent, Auto, Plain view, Inventory, Special needs, Terry “stop and frisk”
What are the exigent circumstances?
Evanescent evidence and hot pursuit.
What is evanescent evidence?
Evidence that would dissipate or disappear in the time it would take to get a warrant. POs can’t create the exigency that causes the destruction.
What is hot pursuit of the fleeing felon?
Hot pursuit allows police when looking for suspect to enter a suspect’s home or that of 3d party into which he has fled. Any evidence of a crime discovered in plain view while searching for suspect is admissible if pursuit is “hot.”
What is a search incident to arrest?
When PO made a lawful arrest and PO has concerns for 1) officer safety and 2) need to preserve evidence, PO may search contemporaneous in time and place with the arrest.
What is the permissible scope of a SITA?
The wingspan or grabbing area which includes the body, clothing, and any containers w/in arrestee’s immediate control w/o regard to the offense for which the arrest was made.
What is the permissible scope of SITA w/ respect to automobiles?
Interior cabin, including closed containers, but not the trunk, may be searched. Once officer has secured an arrestee, officer can search arrestee’s vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.
What is the standard for consent to search?
Consent must be voluntary and intelligent. POs do not need to tell someone that she has the right to refuse to consent, and they can ask for D to consent to basically anything.
What is apparent authority to consent?
If PO obtains consent to search from someone who lacks actual authority to rant it, the consent is still valid under 4th Am, provided officer reasonably believed that the consenting party had actual authority.
What are the exceptions to apparent authority?
Hotel operators and landlords can’t consent.
Who may consent to the search of shared premises?
Any or all adults can consent to common area searches.
What if co-tenants disagree about consenting to the search?
If co-tenants with an equal right to use or occupy premises disagree, the objecting party prevails as to areas over which they share common dominion and control BUT objecting party must be present to object.
What is the standard for conducting an automobile search?
POs need PC to believe that contraband or evidence of a crime will be found in the vehicle.
Where in the automobile may POs search?
The entire car and they may open any package, luggage, or other container that may reasonably contain the items for which there was PC to search.
What is the rule with traffic stops and car searches?
If detainment begins as an auto stop, for the search to be lawful, an officer doesn’t need PC at the time the car is pulled over, provided he acquires it before initiating the search.
What are the requirements of the plain view doctrine?
1) Lawful access to the place from which the item can be plainly seen.
2) Lawful access to the item.
3) The criminality of the item must be immediately recognizable.
When may an inventory search be conducted?
When arrestee is booked or when a car is impounded.
When are inventory searches constitutional?
If the regulations governing them are reasonable in scope and the search itself complies with those regulations i.e. need a routine practice.
What is the special needs doctrine?
Caters to the “special needs” of law enforcement, governmental employers, and school officials beyond a general interest in law enforcement.
When does special needs permit warrantless random drug testing?
RR employees following an impact accident; customs agents who are responsible for drug interdiction, and school children who participate in any extracurricular activities.
What is the limit on warrantless random drug testing?
Suspicionless drug tests are not permitted where their primary purpose is gather criminal evidence for use by law enforcement.
When does special needs allow warrantless search of govt employees’ desks and files?
Permitted to investigate work related misconduct.
When does special needs allow warrantless search of student “effects” in public schools?
Permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds.
When does special needs allow border searches?
Neither citizens nor non-citizens have any 4th Am rights at the border, which respect to routine searches of persons and effects.
Does the 4th Am apply to searches conducted under special needs?
YES.
What is a Terry stop?
A brief detention or “seizure” for the purpose of investigating suspicious conduct. Can take place anywhere.
When are you “seized” for 4th Am purposes?
An individual is seized for 4th Am purposes when based on a totality of circumstances a reasonable person would not feel free to leave or to decline an officer’s request to answer questions. SCOTUS usually presumes non-seizure.
What are the factors for evaluating whether a person has been seized?
Consider 1) whether officer brandishes a weapon, 2) the officer’s tone and demeanor when interacting with the individual questioned, and 3) whether the individual was told she has the right to refuse consent. May be other factors.
When is a person being pursued by a PO “seized”?
When the person submits to the officer’s authority by stopping or if the officer physically restrains him.
When is a person seized in a traffic stop?
When there is a stop, both driver and passengers are seized such that either can challenge the legality of the stop.
When is a dog sniff permissible?
In traffic stops, dog sniffs are permissible if sniff doesn’t prolong the stop unreasonably. BUT if you walk up to the front door of a house with a dog, it’s a search and unreasonable.
What is a Terry frisk?
A pat down of the body and outer clothin for weapons that is justified by an officer’s belief that a suspect is armed and dangerous.
What can be seized in a Terry frisk?
If PO finds a weapon, it can always be seized. If PO finds something she recognizes as contraband w/o manipulating the object, that can be seized too!
What can be seized in a VA Terry frisk under the “plain feel doctrine”?
Court doesn’t want to allow this easily. Difficult w/ drugs to show PO knew what it was on feel alone.
In a traffic stop, what can be searched and seized in a Terry “car frisk”?
If PO believes a suspect is dangerous he may search the passenger cabin of suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden.
What evidentiary standard applies to Terry stop and frisks?
Reasonable suspicion, which is more than a hunch but less than PC. (Note: flight by itself isn’t enough for reasonable suspicion, but is an important factor.)
How does reasonable suspicion apply in Terry stops?
Requires specific and articulable facts that inform a PO’s belief that criminal activity is present.
How does reasonable suspicion apply in Terry frisks?
It requires specific and articulable facts that suggest a suspect is armed and dangerous. Frisk may be justified by concern for officer safety only; it is not a general search.
What is the exclusionary rule?
Evidence whether physical or testimonial that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.
What are the limits on the exclusionary rule?
Case and chief v. cross-examination; knock and announce violations; PO’s reasonable mistakes; fruit of the poisonous tree.
What is the case-in-chief v. cross-examination exemption to the exclusionary rule?
Unconstitutionally obtained evidence is excluded from the case in chief only; it may be introduced to impeach the defendant’s testimony on cross-examination.
What is the exclusionary rule as it relates to knock and announce violations?
A failure to comply with the knock and announce rule doesn’t require suppression of the evidence subsequently discovered.
How do an officer’s reasonable mistakes affect the exclusionary rule?
The exclusionary rule doesn’t apply to evidence erroneously obtained when executing a search warrant, provided an officer’s mistake was reasonable. One key is that POs must stop the search when they realize their mistake.
What is the fruit of the poisonous tree doctrine?
Evidence obtained by exploiting prior unconstitutional conduct. The derivative evidence is called fruit of the poisonous tree and is inadmissible in P’s case in chief.
What must be done to nullify the fruit of the poisonous tree?
Ps must show a break in the causal link between the original illegality and the criminal evidence that is later discovered, usually through either independent source doctrine, inevitable discover doctrine, or attenuation doctrine.
What is the independent source doctrine?
There is a source for discovery and seizure of the evidence that is distinct from the original illegality.
What is the inevitable discovery doctrine?
Evidence would necessarily have been discovered through lawful means.
What is the attenuation doctrine?
Admits derivative evidence where D’s free will has been restored through the passage of time and intervening events.
What is the problem with standing and the exclusionary rule?
Many items of evidence are admissible because of the standing rule, not because of the fruit of the poisonous tree doctrines.
What are the four major requirements for a valid wiretap warrant?
Screen Telephone Calls Carefully. (1) warrant must be in the name of SUSPECTED persons whose convos are to be overheard. (2) must be PC that a CRIME has been committed. (3) warrant must describe w/ particularity the CONVERSATIONS that can be overheard. (4) tap must be for a strictly limited TIME period.
