Criminal Procedure (Delaware) Flashcards
Search and Seizure: Government Conduct - Agents Who Fall Under Search and Seizure Action
1) Publicly paid police, on or off duty,
2) Private citizens acting under the direction of police,
3) Private security that has been deputized with the power to arrest, and
4) Public school administrators
Search and Seizure: Areas or Items Protected by the Fourth Amendment
The Fourth Amendment expressly protects individuals from UNREASONABLE searches and seizures of their:
1) Persons (their bodies),
2) Houses (includes hotel rooms and curtilage),
3) Papers (e.g., personal correspondence), and
4) Effects (personal belongings, e.g., purses, backpacks, and cars)
Search and Seizure: Areas or Items Protected by the Fourth Amendment - Unprotected Items
The following carry NO Fourth Amendment protections because they are sufficiently public in nature that they have no privacy interest (Mnemonic: Public Observation Generally Obliterates Fourth Amendment Protection):
1) Physical characteristics (e.g., voice or handwriting)
2) Odors (e.g., from car or luggage)
3) Garbage (left out on the curb)
4) Open fields (anything that can be seen in or across the open fields)
5) Financial records held by bank
6) Airspace (seen below when flying over public airspace)
7) Pen registers
Search and Seizure: Implication of Fourth Amendment - Trespass-Based Test
The agent PHYSICALLY INTRUDED on a constitutionally PROTECTED AREA in order to obtain information.
Search and Seizure: Implication of Fourth Amendment - Privacy-Based Test
The agent’s search or seizure of a constitutionally protected area violated an individual’s REASONABLE EXPECTATION OF PRIVACY. An individual must show the following:
1) An ACTUAL or SUBJECTIVE expectation of privacy in the area searched or items seized, AND
2) That the privacy expectation was one that “society recognizes as reasonable” (OBJECTIVE)
Search and Seizure: Implication of Fourth Amendment - Privacy-Based Test - Advanced Technology Used To Search
A police search is presumptively UNREASONABLE when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion (e.g., thermal imaging device)
Search and Seizure: Implication of Fourth Amendment - Standing to Challenge Search (Third Parties)
To have authority or standing to challenge the lawfulness of a search or seizure, an individual’s PERSONAL privacy must be invaded, NOT THOSE OF A THIRD PARTY.
Search and Seizure: Warrants - Statutory Requirements for Valid Warrant
An application for a search warrant must:
1) Be in WRITING,
2) Be SIGNED by the complainant, and
3) Be VERIFIED by oath or affirmation.
Search and Seizure: Warrants - Nighttime Searches
A warrant cannot authorize a search of a dwelling UNLESS the magistrate who authorized the search thought it was necessary to prevent escape of the person or removal of the thing to be searched.
Search and Seizure: Warrants - Neutral and Detached Magistrate
A judicial officer ceases to be sufficiently “neutral and detached” for Fourth Amendment purposes when their conduct demonstrates IN FAVOR OF THE PROSECUTION.
Search and Seizure: Warrants - Two Elements
For a warrant to be valid, it must have 1) probable cause and 2) particularity.
Search and Seizure: Warrants - Probable Cause
Probable cause requires proof of a “fair probability” that contraband or evidence of a crime will be found in the area searched.
Search and Seizure: Warrants - Probable Cause - Test to Use Informants Information
Information from informants may be used based on magistrates COMMON SENSE PRACTICAL DETERMINATION that probable cause exists based on a TOTALITY OF THE CIRCUMSTNACES.
Search and Seizure: Warrants - Probable Cause - Special Delaware Rule for Supplemental Information of an Affidavit
In Delaware, a judge will determine whether a search warrant satisfies probable cause based on the FOUR CORNERS OF THE AFFIDAVIT, oral supplementation is NOT PERMITED.
Search and Seizure: Warrants - Particularity
To satisfy the particularity requirement, the affidavit MUST include 1) the PLACE TO BE SEARCHED, and 2) ITEMS TO BE SEIZED.
Search and Seizure: Warrants - Good Faith Exception
In some states, a warrant that is invalid due to the absence of probable cause or particularity can still be saved if the officer relied on it in GOOD FAITH.
DELAWARE DOES NOT FOLLOW THE GOOD FAITH DOCTRINE.
Search and Seizure: Warrant Execution - Warrant’s Terms and Limitations
In executing a warrant, officers are allowed to search only those AREAS and ITEMS authorized by the language of the warrant, and any contraband they discover in the valid execution.
Search and Seizure: Warrant Execution - Search of Persons Found on Premises
When executing a search warrant, officers MAY DETAIN occupants found within or immediately outside the premises at the time of the search.
Search and Seizure: Warrant Execution - Knock and Announce Rule + Exceptions
This requires the police to announce their PRESENCE and PURPOSE before entering the premise, UNLESS the officer REASONABLY believes doing so would:
1) be futile or dangerous, or
2) Inhibit investigation
Search and Seizure: Exceptions to the Warrant Requirement (List)
(ESCAPIST):
1) Exigent Circumstances,
2) Search Incident to Lawful Arrest,
3) Consent,
4) Automobile,
5) Plain View,
6) Inventory,
7) Special Needs,
8) Terry Stops (Stop and Frisks)
Search and Seizure: Exceptions to the Warrant Requirement - Exigent Circumstances - Evanescent Evidence + Alcohol in Blood
Evanescent evidence is evidence that MIGHT DISSIPATE OR DISSAPEAR QUICKLY if the police took the time to get a warrant.
Note: The natural dissipation of alcohol in the blood stream DOES NOT automatically create an exigency sufficient to justify a warrantless blood alcohol content test.
Search and Seizure: Exceptions to the Warrant Requirement - Hot Pursuit of a Fleeing Felon
Hot pursuit allows police officers to enter the home of a suspect or a third party to search for a fleeing felon, and ANY EVIDENCE discovered in PLAIN VIEW while searching for the suspect is ADMISSIBLE.
Search and Seizure: Exceptions to the Warrant Requirement - Emergency Aid/Community Caretaker
A police officer may enter a residence without a warrant if there is an OBJECTIVELY REASONABLE basis for believing that a person inside is in need of emergency aid to address or prevent injury (NOT REQUIRED TO BE LIFE THREATENING)
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest
Incident to a lawful arrest, the police may search the PERSON and AREAS INTO WHICH THEY MIGHT REACH TO OBTAIN WEAPONS OR DESTROY EVIDENCE (i.e., wingspan)
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Timing and Scope
The search must be CONTEMPORANEOUS in time and place with the arrest and the PERSON AND AREAS WITHIN THE PERSON’S WINGSPAN, including body, clothing, and any bags and containers within arrestee’s immediate control.
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Contemporary Balancing Test
With respect to modern things that can be searched, the SCOTUS balances the degree to which the search incident to arrest INTRUDES UPON A PERSON’S PRIVACY against the degree to which the search is needed to promote LEGITIMATE GOVERNMENT INTEREST. (e.g., Cell Phones (may not search data), DNA (may take DNA swab), Sobriety Tests (may take breath not blood)).
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Automobiles Searched Incident to Custodial Arrest
The police may conduct a search of the passenger cabin, including closed containers, BUT NOT THE TRUNK.
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Automobiles Search (Secured v. Unsecured Arrestees)
Secured Arrestee - The officer can only search the arrestee’s vehicle if the officer has reason to believe the vehicle may contain evidence RELATING TO THE CRIME FOR WHICH THE ARREST WAS MADE
Unsecured Arrestee - The police may search an automobile incident to arrest if the arrestee is UNSECURED and STILL MAY GAIN ACCESS TO THE INTERIOR OF THE VEHICLE.
Search and Seizure: Exceptions to the Warrant Requirement - Consent
A warrantless search is valid if the police have a VOLUNTARY CONSENT, regardless if the individual knows they have the right to refuse consent.
Search and Seizure: Exceptions to the Warrant Requirement - Consent - Scope
The scope of the search may be limited to what was consented, but generally consent to a search extends to ALL AREAS which a REASONABLE OFFICER would believe permissible
Search and Seizure: Exceptions to the Warrant Requirement - Consent - Apparent Authority
An individual who has APPARENT authority to give consent is ENOUGH to allow for a search, ACTUAL authority is not required.
Search and Seizure: Exceptions to the Warrant Requirement - Consent - Inconsistent Consent with Shared Premises
If co-tenants who are BOTH PRESENT disagree regarding consent to search the common areas, the OBJECTING PARTY PREVAILS over areas with which they share dominion and control, HOWEVER if removed due to lawful arrest, police can rely on consent of remaining co-tenant.
Search and Seizure: Exceptions to the Warrant Requirement - Automobile Exception
If police have PROBABLE CAUSE to believe that a vehicle contains evidence of a crime, they MAY SEARCH THE WHOLE VEHICLE and ANY CONTAINER that might REASONABLY CONTAIN the item for which they had probable cause to search.
Search and Seizure: Exceptions to the Warrant Requirement - Automobile Exception - Curtilage
The automobile exception DOES NOT APPLY to vehicles on the CURTILAGE of a home.
Search and Seizure: Exceptions to the Warrant Requirement - Plain View
The police may make a warrantless seizure of an item in plain view if the following requirements are met: 1) the police have LAWFUL ACCESS TO THE PLACE from which the item can be seen, 2) the police have LAWFUL ACCESS TO THE ITEM, and 3) the criminality of the item is IMMEDIATELY APPARENT.
Search and Seizure: Exceptions to the Warrant Requirement - Inventory Searches (Types + Requirements)
Inventory searches may occur in either: (1) arrestee when they are booked into jail, and (2) vehicles when they are impounded.
Inventory searches are constitutional provided:
1) the regulations governing them are REASONABLE in scope,
2) the search itself complies with those regulations, and
3) the search is conducted in GOOD FAITH - motivated solely by the need to safeguard the owner’s possessions and/or to ensure officer safety.
Search and Seizure: Exceptions to the Warrant Requirement - Terry Stops (Stop and Frisk)
A Terry Stop is a BRIEF detention or SEIZURE for the purpose of INVESTIGATING SUSPICIOUS CONDUCT. These can take place ANYWHERE.
Search and Seizure: Exceptions to the Warrant Requirement - Terry Stops (Stop and Frisk) - Permissible Length (Delaware Rule)
Under Delaware law, the stop must be concluded WITHIN 2 HOURS, at which time an officer must either arrest the suspect or let them go.
Search and Seizure: Terry Stops - When a Seizure Occurs
An individual is seized under Fourth Amendment purposes when, based on a TOTALITY OF THE CIRCUMSTANCES, a REASONABLE PERSON would not feel free to leave OR to decline an officer’s request to answer questions.
Factors to consider: 1) whether the officer brandishes a weapon, 2) the officer’s tone and demeanor, and 3) whether the individual was told they had the right to refuse consent.
Search and Seizure: Terry Stops - When a Seizure Occurs - Police Pursuit
When being pursued by a police officer, an individual is seized ONLY if the individual submits to the officer’s authority by stopping or if the officer physically restrains them.
Search and Seizure: Terry Stops - Traffic Stops (Who is Seized + Dog Sniffs)
In a traffic stop, both the driver and passenger are seized, such that EITHER can challenge the legality of the stop, though an officer may legally order both out of the car.
Dog sniffs at stops are PERMISSIBLE provided the sniff does not prolong the stop, and an alert by the dog will provide PROBABLE CAUSE.
Search and Seizure: Terry Stops - Frisks
Terry frisk is a PATDOWN of the outer clothing and body to check for WEAPONS that is justified by an officer’s belief that a suspect is armed and dangerous
Search and Seizure: Terry Stops - What Can Be Seized in a Terry Frisk
If an officer finds something he reasonably believes to be a WEAPON, or CONTRABAND WITHOUT MANIPULATING THE OBJECT, the officer can seize it.
Search and Seizure: Terry Stops - Car Frisks
When conducting a traffic stop, if an officer believes that a suspect is dangerous, the officer MAY search the PASSENGER CABIN of the suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden.
Search and Seizure: Terry Stops - Protective Sweep
When making an in-home arrest, police may “SWEEP” the residence to look for criminals whose presence may threaten the officer’s safety.
Search and Seizure: Terry Stops - Evidentiary Standard for Stop
The evidentiary standard for Terry stops and frisks is REASONABLE SUSPICION, which is less than probable cause, meaning for stops, the officer must have REASONABLE GROUND to believe a person is committing, has committed, or is about to commit a crime.
