Criminal Procedure Flashcards
What are the four questions that I need to ask when analyzing a search and seizure question?
I. Is search or seizure governed by the Fourth Amendment;
IIA. Did a search or seizure conducted with a warrant satisfies Fourth Amendment requirements;
IIB. Did a search or seizure conducted without a warrant satisfies Fourth Amendment requirements; and
III. Will evidence obtained through a search and seizure that violates the Fourth Amendment be nonetheless admissible in court.
I
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What are the questions that I need to ask to determine whether the search or seizure governed by the Fourth Amendment?
- government agent?
Was the search or seizure executed by a - area or item protected by 4A?
Was the search or seizure of an - physically intrude or violate reasonable expectation of privacy?
Did the government agent either - Standing?
to challenge the government agent’s conduct
I
Who is government agent for purposes of determining whether the search or seizure governed by the Fourth Amendment?
Publicly paid police (On or off duty), Private citizens acting that direction of police, Security guards Deputized with the power to arrest (e.g., Campus security), Public school administrators
I
What specific areas or items are protected for purposes of determining whether the search or seizure governed by the Fourth Amendment?
- Physical body
- Dwellings, Including cutilege
- papers
- effects (Containers of personal belongings; e.g., car, purse)
I
What areas or items are unprotected for purposes of determining whether the search or seizure governed by the Fourth Amendment?
Mnemonic: “Public Observation Generally Obliterates Fourth Amendment Protection.” P:hysical Characteristics O:ders G:arbage O:pen "Fields" (Public space) F:inancial records Held by a bank A:ir space P:hone number called listing from phone company
I
When will a S&S physically intrude or violate reasonable expectation of privacy for purposes of determining whether the search or seizure governed by the Fourth Amendment?
- Trespass-based test: The agent physically intruded on a constitutionally protected area in order to obtain Information.
- Privacy-based test: The agent’s search or seizure of a constitutionally protected area violated an individual’s Reasonable expectation of privacy
I
When will a S&S by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing” for purposes of determining whether the search or seizure governed by the Fourth Amendment?
To have authority, or “standing,” to challenge the lawfulness of a search or seizure by a government agent, an individual’s personal privacy rights must be invaded, not those of a third party.
IIA
What are the three questions that I need to ask in determining whether a S&S conducted with a warrant satisfies 4A requirements?
- Issued by neutral and detached magistrate?
- Supported by “probable cause” (fair probability) and “particularity” or, alternatively, government agent relied on a defective warrant in “good faith?”
- Properly executed by the police?
IIA
What is required to support the particularity requirement in a S&S conducted with a warrant satisfies 4A requirements?
The Search warrant must specify place to be searched and the evidence to be seized
IIA
What Are the four categorical exceptions to the “Good faith” reliance upon a defective warrant when determining whether a S&S conducted with a warrant satisfies 4A requirements?
- Affidavit supporting warrant application so egregiously lacking In probable cause that no reasonable officer would
have relied on it - warrant is so facially deficient in Particularity that officers could not reasonably presume it to be valid.
- Affidavit contains knowing or reckless falsehoods
- Magistrate who issued a warrant is biased in favor of prosecution
IIA
What are the two aspects of whether a search warrant was properly executed by the police when determining whether a S&S conducted with a warrant satisfies 4A requirements?
- Compliance with the warrant’s terms and limitations:
allowed to search only those areas and items authorized by the language of the warrant but may detain occupants found within and immediately outside the residence
- Knock and announce rule:
Unless futile, dangerous, or inhibits investigation.
A warrant allows police to search “the living room and all bedrooms for stolen iPads.” Is a search of a wallet permissible under the warrant?
No because it is too small to hold the iPad
IIB
What are the exceptions for a S&S conducted without a warrant to still satisfy 4A?
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"
IIB
What constitutes exigent circumstances for a warrantless S&S to still satisfy 4A?
- Evanescent Evidence:
evidence that would Dissipate or disappear in the time it would take to get a warrant - “Hot Pursuit” of a Fleeing Felon:
may enter home of suspect or third party to search for fleeing felon and use any evidence of a crime discovered in Plain view while searching - “Emergency Aid” exception:
may enter a residence when an objectively reasonable basis that person inside needs emergency aid
IIB
What constitutes search incident to arrest for a warrantless S&S to still satisfy 4A?
- Arrest must lawful
- Search contemporaneous in time and place with arrest
- Scope:
For Person: limited to body, clothing, and any containers within the arrestee’s immediate control without regard to the offense for which the arrest was made
For Car:
Before arrest: Passenger cabin including closed containers but not trunk.
After suspect secured: scope allowed only if reasonable belief that car has evidence Related to the crime for which the arrest was made.
After making an arrest for driving while intoxicated, an officer searches a cigarette pack in the arrestee’s front shirt pocket and seizes the crack cocaine he finds inside. Are the search and seizure lawful?
Y, this is a valid search incident to arrest: contraband found in a Container inside the arrestee’s Clothing and therefore within arrestee’s immediate control
Jill is arrested for driving with a suspended license. Officer handcuffs Jill and puts her in his squad car. Then, Officer goes back to car and finds in Jill’s purse on the floor of the car cocaine and seizes it. Are Jack’s actions lawful?
No, this is not a valid search incident to arrest: Jack could not reasonably expect to find evidence relating to driving with a suspended license inside the vehicle.
IIB
What constitutes consent for a warrantless S&S to still satisfy 4A?
Consent must be voluntary and intelligent but is limited in scope to areas for which permission was granted.
IIB
What constitutes consent in a shared premises for a warrantless S&S to still satisfy 4A?
When adults share a residence, any resident can consent to a search of common areas within it. If co-tenants disagree regarding consent to search common areas, the objecting party prevails, as to areas over which they share dominion and control.
IIB
What constitutes authority to consent for a warrantless S&S to still satisfy 4A?
officer’s reasonable belief that consenting party had actual authority, even if erroneous.
“Apparent” authority was found where an officer reasonably believed that a woman had “actual” authority to consent to his entry into her boyfriend’s apartment since she referred to the apartment as “ours,”
had a key to enter it, and claimed to keep personal belongings there.
IIB
What is the “automobile” exception and its scope for a warrantless S&S to still satisfy 4A?
Probable cause to believe that contraband or evidence of a crime will be found in the vehicle. May search vehicle and any container that may reasonably contain the item(s) for which there was probable cause to search.
IIB
Car pulled over for speeding. Officer Ed runs license plate through computer, discovers that car linked to drug trafficking activity. Returns to the vehicle and searches, finding a 5-lb package of cocaine under the spare tire in the trunk. Is this search lawful?
Could Ed have lawfully searched the car before he ran the license plate?
Search is lawful. Officer does not need probable
cause to search the vehicle at the time the car is pulled over for traffic stop, provided he acquires it before initiating the search.
Search is unlawful because didn’t have probable cause at time of search.
IIB
What are the elements of the plain view exception for a warrantless seizure to still satisfy 4A?
- lawful access to the place from which the item can be plainly seen;
- Lawful access to the item itself; and
- The criminality of the item must be immediately apparent
A police officer enters a residence in “hot pursuit” of a fleeing felon. The officer enters an upstairs bedroom and opens a closet door to see if the felon is hiding inside. He is not. Noticing a backpack on the floor, the officer opens it and finds a baggie containing a white, powdery substance labeled “heroin.” He seizes it. Is the seizure of the heroin valid? Why or why not?
Under the plain view doctrine, an item may be seized without a warrant if there’s:
1. lawful access to place from which the item can be plainly seen;
2. Lawful access to the item itself; and
3. The criminality of the item must be immediately apparent
Here, while the officer had lawful access to the bedroom and the closet (the “place”) and seized what he knew was contraband (“immediately apparent” criminality), he did not have lawful access to the backpack (the
“item” searched) because the felon could not fit inside it.
IIB
When will warrantless inventory searches satisfy 4A?
- governing regulations are reasonable in scope
- Search itself complies with those regulations; and
- Search conducted in good faith (just to safeguard owners possessions or ensure officer safety)
