Criminal Procedure Flashcards
Fourth Amendment Inquiry
- Was the search executed by a gov’t agent ?
- Is the area or item a protected item?
- Was there physical intrusion / violation of the reasonable expectation of privacy?
- Does the defendant have standing to challenge the search?
All four questions are part of the Fourth Amendment inquiry.
Government Agent
For Fourth Amendment purposes, a government agent is any of:
- Publicly paid police, on or off duty;
- Private citizens acting at the direction of the police;
- Private security guard, *only if *deputized with the power to arrest;
- Public school administrators.
Items/Things Protected by Fourth Amendment
**PERSONS **
i.e., bodies
**HOUSES **
i.e., home, hotel room, curtelage to home where home life extends
**PAPERS **
i.e., personal correspondence
**EFFECTS **
i.e., personal belongings, backpacks, purses, etc.
Unprotected Items under the Fourth Amendment
“POGOFAP”
**P **HYSICAL CHARACTERISTICS
**O **DORS
**G **ARBAGE
**O **PEN FIELDS
**F **INANCIAL RECORDS
**A **IR SPACE
**P **EN REGISTERS
Reasonable Expectation of Privacy
- Actual or subjective expectation of privacy in the area searched or the items seized; and
- Expectation is one that society recognizes as reasonable.
- **Note: presumptively unreasonable to use a device not in public use to explore the details of home that officers couldn’t otherwise have known about without physical intrusion (e.g., thermal imaging). **
Standing to Challenge a Fourth Amendment Search
YES
- Owner of the premises;
- Resident of the premises;
- Overnight guests, as to place they can be expected to access
NO
- Uses of a residence solely for business purposes (not overnight guests);
- “Effect” (e.g. purse) owned by someone else;
- Passengers in a car
- ***NY: passengers have standing in order to challenge the possession of weapons. **
Valid Warrant Requirements
- **Issuance by neutral and detached magistrate. **No bias in favor of prosecution.
- **NY: may be obtained by phone/email and made into a written search warrant. **
- **Supported by probable cause and particularity. **Fair probability that contraband or evidence will be found in the place search.
- Hearsay admissible to support.
- Anonymous tips OK as basis, *if *police corroborate enough detail to allow, on totality of circumstances, a common sense practical determination of probable cause. Descriptions of a person alone are insufficient.
- NY: Rule on anonymous tips is the Aguilar-Spinelli test. Gov’t must establish (1) informant’s reliability and veracity; (2) basis of knowledge. If no basis of knowledge, police must use its own observations that confirm sufficient detail suggestive of or related to the criminal activity in question.
- **Specifies ITEMS TO BE SEIZED AND PLACE TO BE SEARCHED. **
Good Faith Exception to Defective Search Warrant
- **NY DOES NOT FOLLOW THIS RULE. **
- The good faith execution of a police officer will overcome a defective search warrant unless:
- egregiously lacking in probable cause;
- facially deficient in particularity;
- knowing or reckless material falsehoods in supporting affidavits (not including falsehoods that were negligent or those that were not necessary to the probable cause determination); or
- magistrate biased in favor of prosecution.
PROPER EXECUTION OF SEARCH WARRANT
-
Compliance with terms and limitations (areas and items authorized)
- Detention of occupants within or immediately outside the residence is okay but the warrant doesn’t by itself give the police the right to search such persons.
-
Knock and Announce Rule
- Required unless there is a reasoanble belief that it is futile, dangerous, or would inhibit investigation.
- Never causes the exclusionary rule to apply (NY hasn’t decided this yet).
Exceptions to the Warrant Requirement
General List
**“ESCAPIST” **
** E **xigent circumstances
** S **earch incident to arrest
- *C **onsent
- *A **utomobile
- *P **lain view
- *I **nventory
- *S **pecial needs
- *T **erry “stop and frisk”
Warrant Exceptions
**Exigent Circumstances **
-
Evanescent Evidence. Evidence that would dissipate or disappear in the time it would take to get a warrant.
- Blood alcohol is not automatically in this category;
- NY: **no common law right to perform blood/chem tests except a NY vehicle and traffic law, in which operator of vehicle is presumed to have consented to such a test. **
- Hot Pursuit of Fleeing Felon. Allows PO to enter home of a suspect or third party; and then any plain view evidence is admissible.
- Emergency Aid. PO may enter residence where objectively reasonable basis to believe the person inside is in need of emergency aid in order to address/prevent injury; and then any plain view evidence is admissible.
Warrant Exceptions
**Consent **
- Voluntary & intelligent (no need to inform of the right to refuse);
- Extends to all areas for whcih a reasonable officer wold believe permission to search was granted.
- Apparent authority, if reasonable, is valid consent.
- Shared premises: any resident can consent to search of common areas, but if co-tenants who are present disagree about search, objecting party prevails, as to areas over which they share dominion and control.
EX - Mom who regularly cleans son’s room and makes his bed can give consent to search the bed since she has access to it. Probably couldn’t give consent to open a locked box under the bed, however.
Warrant Exceptions
Search Incident to Arrest
**Search of the person must be: **
- Incident to a lawful arrest;
- Contemporaneous in the time and place of arrest;
- Of the wingspan (body, clothing, containers within immediate control) (regardless of offense).
- **NY: To search container within the wingspan, officer must suspect the arrestee is ARMED. **
**Automobile searched incident to lawful arrest: **
- Can search interior cabin, incuding closed containers, but not the trunk.
- Once arrestee is secured, the search is only okay if PO expects to find evidence relating to the crime for which arrest was made.
- **NY: once D is outside the car, PO can’t search containers in the car. **
Warrant Exceptions
Automobile Exception
- Requires probable cause to believe contraband or evidence of a crime will be found in vehicle.
- Can search entire vehicle and open any package that may reasonable contain items for which there was probable cause to search.
- Justification - vehicles’ ready mobility and individuals’ lesser expectation of privacy in their vehicles as opposed to their houses.
(no need for probable cause to pull over – unrelated traffc infraction is okay, as long as cause is required before initiating search).
Warrant Exceptions
Terry Stop and Frisk
(Procedure)
-
TERRY STOP: A brief detention (seizure) for the purpose of investigating suspicious conduct. Seizure in the sense that a reasonable person would not feel free to leave.
- *Police pursuit *= seizure only if the person submits to P.O.’s authority by stopping, or if he is physically restrained.
- NY: Police pursuit itself is a seizure.
- *Traffic stops *= driver + passengers are seized. P.O. can order persons out of the car; dog sniffs okay if not unreasonably prolonged).
- *Police pursuit *= seizure only if the person submits to P.O.’s authority by stopping, or if he is physically restrained.
-
TERRY FRISK: Pat down of body & outer clothing for weapons, justified by the belief that the suspect is armed and dangerous.
- Can seize a weapon or contraband, if can tell without manipulating the object. **NY - seizure only okay if it reasonably appears to be a weapon. **
- Car frisk, if P.O. thinks suspect is armed, but only cabin where weapons can be hidden.
- Protective sweep: in home arrest, sweep to look for criminal confederates.
Warrant Exceptions
Terry Stop and Frisk
Requires reasonable suspicion (something less than probable cause)
*Tips with corroborating information to establish reliability are okay. Just description of a person insufficient.
- **Terry Stops: **Reasonable, articulable facts that inform P.O.’s belief that criminal activity is afoot. Objective standard only; subjective intent irrelevant.
- **Terry Frisks: **Specific, articulable facts that suspect is armed and dangerous. Not a search for criminal evidence; just about safety.
- **Protective Sweeps: **No probable cause needed to look in areas adjoining place of arrest from which an atack could be launched, when making an in-home arrest.
- To justify a weep of more remote areas, needs additional facts sufficient to conclude that an individual who may threaten safety is present in area swept.
New York:
Non-Arrest Detentions
- Request for info: any reason except on “whim or caprice” (refusal to respond / running away is not probable cause to arrest).
- Common law right to inquire: founded suspicion the criminal activity is afoot. Detention short of seizure; can ask Qs; explanations by suspect require release.
- Forcible stop/dentention/frisk: reasonable suspicion that the suspect has/is committing a crime. “Plain feel” frisk for a weapon. May seize without warrant anything reasonably believed to be a weapon.
- Police pursuit = seizure of person. Must be based on reasonable suspicion of crime.
Warrant Exceptions
Plain View
- Lawful access to the place from which the item can be plainly seen;
- Lawful access to the item itself; and
- Criminality of the item is immediately apparent.
Warrant Exception
Inventory Searches
- *Constitutional *provided that the regulations governing them are reasonable in scope; search complies with regulations; and search was conducted in good faith (motivated solely by need to safeguard the owner’s possessions and/or ensure officer safety).
- Ex. arrestees when booked into jail; vehicles when impounded
- **NY: Warrantless impoundment and inspection of a person’s vehicle is valid as an administrative search under the highly regulated motor vehicle industry laws. **
Warrant Exceptions
Special Needs
**Non-Law Enforcement Primary Purpose Test **
- **Drug Testing **
- Railroad employees after crash;
- Customs agents;
- Public school children in extracurricular activities.
- **Parolees **
- Warrantless, suspicionless searches of home OK as condition of parole.
- **NY: P.O.’s conduct must have a reasonable/rational connection to duties. **
-
School Searches
- Warrantless searches of person and effects to investigate violations of school rules as long as reasonable at inception and not excessively intrusive in light of age/sex and nature of infraction).
- **Border Searches **
- Where routine
Exceptions to the Exclusionary Rule
- OK to use evidence to impeach defendant’s testimony on cross-examination
- Knock and announce violations **do not **apply
- *NY has not decided about knock and announce rule *
- Police error: to trigger rule, police conduct must be deliberate, reckless, or grossly negligent. Erroneously obtained when executing search warrant, if a reasonable mistake, does not trigger the exclusionary rule.
- Fruit of the poisonous tree: may be admitted **if **causal link is broken by:
- Independent source;
- Inevitable discovery;
- Attenuation (taint purged by time, intervening events)