Criminal Procedure Flashcards
Fourth Amendment
The Fourth Amendment’s Search and Seizure Clause, applicable to the states through the Fourteenth Amendment’s Due Process Clause, prohibits government warrantless searches and seizures with limited exceptions.
The Three S’s
For the Fourth Amendment to apply, there must be state action, the defendants must have standing, and a search or seizure must have occurred.
State Action
The Fourth Amendment limits only state actors.
- ex: police, IRS, school teacher, prison nurse, probation agent.
- ex: if police/state actor direct a private entity to search/seize, Fourth Amendment applies.
Standing
Standing requires that the person challenging a search or seizure have a reasonable expectation of privacy in the place searched or item seized.
Reasonable Expectation of Privacy (REP)
An REP is a reasonable (objective) expectation (subjective) of privacy that society is willing to accept as legitimate.
REP in Certain Places
There is an REP in def’s own home, body, in home where def is overnight guest, def’s car, car where def is driver.
There is NO REP when def is daytime guest, guest for illegal purposes, or car passenger.
Reduced REP
There is a reduced REP in schools, airports, prisons.
REP in Abandoned Property
If property is voluntarily abandoned, there is NO REP. If the abandonment is coerced by illegal search or seizure, which caused def to abandon property, there IS an REP.
United States v. Jones: Trespass
Police attaching a GPS device to car is a search, but not because of traditional REP analysis, but because at the time of the founding, it would have been a trespass.
Seizure
An encounter with a state actor where, due to a show of force or authority, a reasonable person would not feel free to leave, and def yields or is captured.
Accosting
An accosting is an interaction with gov’t actors/law enforcement without any show of authority and is not a search or seizure under the Fourth Amendment.
Stop
A stop is a limited detention for investigative purposes where a reasonable person would not feel free to leave.
Property detained for brief period.
Arrest
A full-blown seizure where a reasonable person would feel freedom to leave was restricted in a significant way.
A full-blown seizure of property–property taken and fully searched or kept.
Search
Any state action that is an intrusion upon or invasion of def’s REP. Includes a frisk (limited search), a full-blown search, or a trespass.
Compliance
If there is state action, standing, and a search or seizure, the Fourth Amendment requires a warrant based on probable cause or an exception.
Probable Cause
A reasonable belief, under the totality of the circumstances, that it is more likely than not that:
Arrest: person committed crime
Search: evidence is in place to be searched
Seizure: item is evidence of a crime or contraband.
Sources of Probable Cause
Government must have reliability and basis to support probable cause.
Probable Cause: Reliability
Is informant/source objectively believable? Factors:
(1) if person gives information from personal knowledge and under oath–very reliable
(2) reliable hearsay. Note the difference between a concerned citizen who gives their own name, a reliable past informant, and an anonymous source.
(3) corroboration
(4) reputation.
Probable Cause: Basis
What is the basis of informant’s knowledge?
(1) affiant’s personal knowledge
(2) informant’s hearsay
- details can indicate personal knowledge, note the level, amount of detail. Is this something anyone would know? Or something unique?
- self-incriminating detail tends to be more reliable.
Illinois v. Gates
Reliability and basis are evaluated together under the totality of the circumstances. Strength in one can compensate for weakness in the other.
Probable Cause: Staleness
Probable cause is too old to justify acting on it. Two forms:
(1) time from information to warrant. Consider length of time, items to be seized (guns v. drugs v. blood), and place to be searched (def’s home v. occasional hangout).
(2) time from warrant to execution. Usually, this limit is set by statute.
Warrant Requirements
A complete warrant includes an affidavit of the affiant detailing the support for probable cause and the warrant itself. Also required:
(1) personal appearance of affiant (phone OK if sworn);
(2) testimony to facts under oath;
(3) facts testified to must support PC;
(4) signed by a neutral and detached magistrate;
(5) particularity–must describe the places to be searched and items to be seized with reasonable particularity.
Four Corners Rule
A reviewing court looks only to the contents of the warrant to determine whether there was probable cause.
Ex: informant lies, and there is evidence that proves it, so what. Within the four corners of the warrant/affidavit, there was PC.
Exception to Four Corners: Franks Hearing
If def can make a substantial showing that affidavit contained false statements, he is entitled to a Franks hearing. At hearing, def must show, by a preponderance of the evidence, that (1) affidavit contained false statements; (2) statements were made knowingly or with reckless disregard for truth; and (3) without statements, PC does not exist.
Reasonable Execution Requirement
Officers executing warrant must use reasonable force and knock & announce, but there is no penalty if they fail to do so.
Protective Sweep
When executing a warrant, officers may search area immediate to def for additional people who may pose a risk to officers. If the protective sweep leads to reasonably articulable suspicion, officers may search further.
Exceptions to the Warrant Requirement
Gov’t may search or seize without a warrant provided that an exception applies. Remember: CAN STRIP SEARCH
Consent search
Arrest (Warrantless Arrest Exception)
National Security
Special Needs Terry Stop & Frisk Regulatory Inventory Plain Sense
SILA (search incident to lawful arrest) Evanescent Evidence Automobile Exception Roadblock Community Caretaker Function Hot Pursuit
Consent Exception
Voluntary consent waives warrant requirement.
- must be voluntary (i.e., not coerced)
- police do NOT have to advise of right to refuse
Third-Party Consent
Police may act upon the actual or apparent consent of a third party.
- apparent = if police reasonably believe that 3d party has authority to consent
- if another authorized owner is present and objects, there is NO consent. But, police can wait until that person leaves and get consent of other owner.
Scope of Consent Search
The proper scope of a consent search is determined by the reasonable interpretation of the terms of consent.
Warrantless Arrest Exception
The warrantless arrest exception will validate a warrantless arrest if there is probable cause to believe that the def has committed a misdemeanor in the officers’ presence or a felony and the arrest is made in a public place or a place where the officer has a right to be.
- if arrest is made without a warrant, there must be a judicial determination of probable cause within 48 hours.
- arrest after development of PC must be reasonably prompt.
National Security Exception
Warrantless wiretaps are allowable and admissible when dealing with national security in foreign affairs, but the Fourth Amendment requires prior judicial approval for domestic security surveillance by issuance of a wiretap warrant.
Border Search Exception
Police or border guards may make routine searches of persons and their effects without a warrant, probable cause, or reasonable suspicion at or near the borders.
- a post office is the functional equivalent of a border for international mail; however, mail is afforded greater protection requiring reasonable suspicion to open, and a warrant to read, correspondence. .
- an airport is the functional equivalent of the border for international flights.
Road Blocks
Roadblocks that warrantlessly stop all cars, even absent RAS or PC, at a fixed check point for reasons that are NOT primarily criminal-prosecution based, are permitted because they address a serious governmental interest and a minor inconvenience for the citizen.
*unannounced roadblocks to check for drunken drivers are permissible for purpose of addressing the immediate health risks posed by drunk driving.
Search Incident to Lawful Arrest (SILA)
The SILA exception permits a warrantless search of the def and the area within the def’s immediate control when made incident to a lawful arrest.
- arrest must be lawful–with a warrant or based on an exception. If arrest is not lawful, search is likewise unlawful.
- even if officer has no right to arrest under state law, making the arrest unlawful under state law, if the police had probable cause to believe the def committed a crime in the officer’s presence, the SILA does not violate the Fourth Amendment.
Hot Pursuit Exception
If the police have PC to believe that an individual has committed a felony and they are pursuing him to arrest him, they have the right to enter a private building during the pursuit, to search that building while they are present on the premises, and to seize evidence found there.
*does NOT apply to misdemeanors.
Evanescent Evidence Exception
A warrantless search is authorized whenever there is a reasonable apprehension that the delay required to obtain a warrant would frustrate the search because the nature of the evidence is such that it will dissipate quickly if no action is taken.
*ex: the taking of a blood test without a search warrant from a driver at the scene of arrest for drunk driving.
Automobile Exception (a/k/a the Carroll Doctrine)
Under the automobile exception, officers can conduct a warrantless search of a vehicle if the officers have probable cause to believe there is contraband or evidence of a crime in a vehicle.
*police do not need a warrant to search a vehicle, EVER.
Stop and Frisk Exception
Under the Stop and Frisk Exception, police may stop a person for investigative purposes if the officer has a reasonable articulable suspicion (RAS) that criminal activity is afoot and the detainee is involved. The exception also permits a frisk (pat down of outer clothing) of a person for weapons only if the officer has RAS that detainee is armed and dangerous.
- show of authority or force is required for stop.
- reasonable person would not feel free to leave. ex: when police take and retain an airline passenger’s ticket and ID, a stop has occurred.
Pretextual Stops
An officer may stop and temporarily detain a motorist for minor traffic violations, even if the officers real motivation is to conduct a drug investigation.
Frisk
The right to frisk does not flow automatically from stop–must have separate RAS that suspect is armed and dangerous. Officer may only pat down outer clothing and seize anything that feels like a weapon–NOTHING ELSE.
- seizure of other items felt during frisk may be authorized under the plain feel exception. See card.
- item must “feel like a weapon.” It is NOT necessary that item be immediately recognizable as a weapon as in the plain view or plain feel exception.
Ripening
Information learned as a result of the stop may confirm the officer’s suspicions and ripen into probable cause.
*note that probable cause alone may not justify a warrantless arrest, but could if coupled with another exception such as the warrantless arrest in a public place.
Stop and Frisk–Automobiles
Officers may “stop” a vehicle based on RAS and order driver from the car.
Officers may “frisk” a car, including passenger compartment and glove box, if there is RAS that driver is armed or may obtain a weapon from the car. Closed containers that may contain a weapon may be searched.
Passengers may also be ordered from the car; however, to detain a passenger any further, officer must have separate RAS for that passenger.
Plain View Exception
The plain view exception permits police to seize an item in plain view where police are in a place they have a right to be and the item is immediately recognizable as evidence of a crime.
