Criminal Procedure Flashcards
Four Central Questions
- Was it a search or seizure governed by 4th A?
- Whether a search or seizure conducted with a warrant satisfies 4th A requirements?
- Whether a search or seizure conducted without a warrant satisfied 4th A requirements?
- The extent to which evidence obtained through a search and seizure that violates the 4th A is nonetheless admissible in evidence
Is the search or seizure governed by 4th A?
Must answer yes to all four questions:
- Executed by government agent?
- Of an area or item protected by the Fourth Amendment?
- Did govt agent either (a) physically intrude on a protected area or item to obtain information; or (b) violate an individual’s reasonable expectation of privacy in a protected area?
- Did the individual subjected to the search or seizure have standing to challenge govt action?
Government Agent
For the 4th A to apply, search or seizure must be executed by a government agent:
- Publicly paid police officer (on or off duty)
- Private citizens acting at the direction of the police
- Private security guards deputized with the power to arrest
- Public school administrators
Protected areas and items
Protected:
(a) Persons (bodies)
(b) Houses (including hotel rooms and curtilage)
(c) Papers (e.g. personal correspondence)
(d) Effects (personal belongings, e.g. purse, backpack, car)
Unprotected: Public Observation Generally Obliterates Fourth Amendment Protect
P - Physical characteristics (sound of voice, handwriting)
O - Odors (e.g. from car, luggage)
G - Garbage left at curb for collection
O - Open fields (seen in or across the field)
F - Financial records held by bank
A - Airspace (anything that can be seen below when flying in public airspace)
P - Pen registers lists phone numbers people dial)
Trespass-Based Test
Agent physically intruded on a constitutionally protected area in order to obtain information
Privacy-Based Test
Agent’s search or seizure of a constitutionally protected area violated an individual’s reasonable expectations of privacy
D must show:
(1) Actual or subjective expectation of privacy in the area searched or items seized, and
(2) The privacy expectation was one society recognizes as reasonable
Presumptively unreasonable if govt uses a device not in public use to explore details of the home officers could not have known without physical intrusion
Standing to challenge govt agent’s intrusion
To have standing to challenge the lawfulness of a search or seizure by a government agent, an individual’s personal privacy rights must have been invaded, not those of a third party
Yes standing: own premises, reside on premises, overnight guest on premises (areas of expected access)
No standing: using residence solely for business purposes, girlfriend’s purse, merely passenger in a car
Depends: own the seized property, only have standing if reasonable expectation in area from which property seized
Search or seizure conducted pursuant to a warrant
Four questions:
- Was warrant issued by a neutral and detached magistrate?
- Is the warrant supported by probably cause and particularity?
- If not, did police officers rely on a defective warrant in good faith?
- Was the warrant properly executed by the police?
Warrants: neutral and detached
Judicial officer ceases to be sufficiently neutral and detached for 4th A purposes when her conduct demonstrates bias in favor of the prosecution
Warrants: probable cause
Probable cause requires proof of a fair probability of contraband or evidence of crime will be found in the area searched
Hearsay is admissible
Use of informants’ tips: Police may rely on information obtained through informant’s tip even if informant is anonymous, so long as police corroborate enough of the information to allow the magistrate to make a common sense practical determination of PC based on totality of circumstances
Warrants: particularity
Search warrant must satisfy: (1) place to be searched and (2) items to be seized
Warrants: good faith reliance on defective warrant
Officer’s good faith reliance overcomes constitutional deficits in probably cause and particularity, UNLESS
(1) Affidavit supporting warrant is so egregiously lacking in PC that no reasonable officer would have relied on it
(2) Warrant is so facially deficient in particularity officers could not reasonably presume it to be valid
(3) Affidavit relied upon by magistrate contains knowing or reckless falsehoods necessary to the PC finding
(4) magistrate who issued the warrant is biased in favor of prosecution
Warrant: execution
(1) Officers must comply with the warrant’s terms and limitations – may detain occupants found within or immediately outside the residence at the time of the search
(2) Knock and Announce Rule: Police must knock and announce their presence and purpose before forcibly entering UNLESS officer reasonable believes doing so would: (a) be futile, (b) be dangerous, or (c) would inhibit investigation
Warrant Exceptions
ESCAPIST
E - Exigent circumstances S - Search incident to arrest C - Consent A - Automobile P - Plain view I - Inventory S - Special needs T - Terry Stop and Frisk
Warrant Exception: Exigent Circumstances
(1) Evanescent evidence: evidence that would dissipate or disappear in the time it would take to get a warrant (alcohol in bloodstream is not automatically evanescent evidence)
(2) Hot Pursuit of a Fleeing Felon: Officers can enter the home of a suspect or third party to search for a fleeing felon. During hot pursuit, any evidence of a crime discovered in plain view is admissible.
(3) Emergency Aid: Police may enter without warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury (does not need to be life threatening)
Warrant Exception: Search Incident to Arrest - Person
(A) Arrest must be lawful
(B) Timing: search must be contemporaneous in time and place with arrest
(C) Geographic scope: the wingspan, which includes body, clothing, and containers w/in arrestee’s immediate control w/o regard for offense for which arrest was made
Cell phones: without a warrant, police may not search digital data on the cell phone of an arrestee, but they can examine physical aspects to make sure it’s not a weapon
DNA evidence: police may lawfully take a DNA sample by swabbing the cheek of an individual arrested for a serious offense
Warrant Exception: Search Incident to Arrest - Automobile
Permissible scope: passenger cabin including closed containers, but not the trunk
Secured v. unsecured arrestees: once officer secures an arrestee (e.g., cuffed and in squad car), can only search arrestee’s vehicle if reason to believe vehicle may contain evidence relating to crime for which arrest was made
Warrant Exception: Consent
Standard: consent must be voluntary, but D doesn’t need to be informed of right to refuse
Scope: consent to search extends to all areas for which a reasonable officer would believe permission to search was granted
Apparent authority: consent is valid provided officer reasonably believed consenting party had actual authority
Shared premises: Any resident can consent to search of common areas, but if co-tenant is present and objects, objecting party prevails.
-But, if objecting co-tenant is removed for reasons unrelated to refusal, consent of remaining tenant is sufficient
Warrant Exception: Automobile Exception
Standard: Officer needs probable cause to believe that contraband or evidence of crime will be found in the automobile
Officer can search the entire vehicle and may open any container that may reasonably contain the items for which there is probable cause to search
Traffic stop: routine stop can become a full search as long as officer has probable cause before beginning the search
Warrant Exception: Plain View
Three requirements:
(1) Lawful access to the place from which the object is plainly viewed
(2) Lawful access to the item itself
(3) Criminality of the item must be immediately apparent
Warrant Exception: Inventory Searches
Commonly occur when: (a) arrestees are booked into jail, and (b) vehicles are impounded
Constitutional if:
(1) Regulations governing them are reasonable in scope
(2) Search complies with the regulations
(3) Search is conducted in good faith (i.e. motivated by need to safeguard owner’s possessions and/or ensure officer safety
Warrant Exception: Terry Stops and Frisks
Brief detention or seizure for purpose of investigating suspicious conduct. Occurs when totality of circumstances reasonable person would not feel free to leave or to decline an officer’s request to answer questions – relevant factors: officer brandishes weapon, officer tone and demeanor, whether informed of right to refuse
Warrant Exception: Terry Stops and Frisks - Traffic Stops
(a) Driver and passenger are seized (either can challenge stop)
(b) Officer may order driver and passenger out of the car
(c) Dog sniffs are permissible so long as don’t prolong the stop unreasonable
Warrant Exception: Terry Stops and Frisks - - Seizure
Seized only if D submits by stopping or is physically restrained
Warrant Exception: Terry Stops and Frisks - - Frisks
Person: pat down of the body and outer clothing for weapons justified by officer’s belief that suspect is armed and dangerous –> if officer finds what he reasonably believes to be a weapon, can seize’ other contraband can be seized only if no manipulation
Car: if during a traffic stop officer believes suspect is dangerous, may search passenger cabin in areas where weapon may be placed or hidden
Protective sweep: during in home arrest, police may sweep residence to look for criminal confederates whose presence may threaten officer safety
