Criminal Procedure Issue 3 - Is the warrantless search through which criminal evidence was gathered valid under any of the 8 exceptions to the warrant requirement? Flashcards
The 8 Exceptions to the Warrant Requirement
“ESCAPIST”
Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry “Stop and Frisk”
Exigent Circumstances - 3 Types
- Evanescent Evidence
- “Hot Pursuit” of a Fleeing Felon
- “Emergency Aid” Exception
Evanescent Evidence
Evidence that would DISSAPPEAR or vanish in the time it would take to get a warrant
ex: tissue under a suspect’s fingernails
“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
- During hot pursuit, any evidence of a crime discovered in while searching for the suspect is admissible
Search Incident to Arrest - 4 Elements
- Arrest
- “Timing”
- Geographic Scope
- Automobiles searched incident to a custodial arrest
Arrest
aka “custodial” arrest: must be a custodial arrest
Timing
The search must be CONTEMPORANEOUS in time AND place with the arrest
Geographic Scope + 3 Examples
The wing span, which includes the body, clothing, and any containers within the arrestees person without regard to the office for which the arrest was made
- Cell Phones: Police may NOT, without a warrant, search the digital data on the cell phone of an arrestee; however, they may examine the cell’s principal aspects to ensure that it will not be used as a weapon
- DNA Evidence: Police may lawfully take a DNA sample by swabbing the cheek of an individual arrested for a serious offense
- Drunk Driving: Incident to arrests for drunk driving, 4th permits breath tests BUT NOT blood tests
Automobiles Searched Incident to a Custodial Arrest
- Permissible Scope: Passenger cabin, including closed containers, but not the truck
- “Secured” vs. “Unsecured Arrestees: Once an officer has secured an arrestee, the officer can search the arrestee’s vehicle ONLY if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made
Consent - Standard
Consent must be VOLUNTARY. For consent to be valid, police officers do not need to tell someone that they have the right to deny consent
Consent - Scope of Consent
An officer’s consent to search extends to all areas for which a REASONABLE OFFICER would believe permission to search was granted
Consent - “Apparent” Authority
If a police officer obtains consent to search from someone who lacks “actual” authority to grant it, the consent is still valid under the 4th, provided the officer REASONABLY believed that the consenting party had “actual” authority
Consent - Shared Premises
- When adults share a residence, ANY resident can consent to a search of common areas within it.
- HOWEVER, if co-tenants who are present on the premises disagree regarding consent to search common areas, the objecting party prevails, as to areas over which they share dominion and control
2a. BUT, if an objecting co-tenant is removed for reasons unrelated to his refusal (a.g., a lawful arrest), the police may rely on the consent of the remaining consenting co-tenant
“Automobile” Exception - Standard
Police officers need PROBABLE CAUSE to believe that contraband or evidence of a crime will be found in the vehicle
“Automobile” Exception - Where can police officers search?
The ENTIRE vehicle and they may open any package, luggage, or other container that may REASONABLY CONTAIN the item(s) for which there was probable cause to search
Traffic Stops and Auto Searches
Sometimes what begins as a routine traiffic stop results in a search of all or part of the vehicle. For the search to be lawful, an officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before instituting the search
Plain View - 3 Requirements
- 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
Inventory Searches - 2 Most Common Occurance
- Arrestees: when they are booked into jail
- Vehicles: When they are impounded
Inventory Searches - They are constitutional provided that they . . . 3 Things
- the regulations governing them are reasonable in scope
- The search itself complies with those regulations; AND
- the search is conducted in good faith, that is, it is motivated SOLELY by the need to safeguard the owner’s possessions and/or to ensure officer safety
Terry Stops and Frisks - What is a Terry Stop
It is a brief detention of “seizure” for the purpose of investigating suspicious conduct
Note: can take place anywhere
Terry Stops and Frisks - When are you seized?
- Based on the totality of the circumstances, a reasonable person would not feel free to leave
- In evaluating whether an individual has been seized during questioning by law enforcement, consider:
a. whether the officer brandishes a weapon
b. the officer’s tone and demeanor when interacting with the person; and
c. whether the individual was told she had the right to refuse consent
Terry Stops and Frisks - Police Pursuit and “Seizure”
When being pursued by a police oficer, an individual is seized ONLY if he submits to the officer’s authority by stopping or if the officer PHYSICALLY restrains him
Terry Stops and Frisks - Traffic Stops (3 Important Principles)
- in a stop, both the driver AND the passengers are seized, such that EITHER can challenge the legality of the stop
- In a stop, the officer may, in their discretion, order both the driver AND the passengers out of the car
- Dog sniffs at traffic stops are permissible, provided the “sniff” does not prolong the stop
Terry Stops and Frisks - Terry Frisk: What is a Terry Frisk?
It is a pat down of the body and outer clothing for weapons that is justified by an officer’s belief that a suspect is armed and dangerous
Terry Stops and Frisks - Terry Frisk: What can You Seize in a Terry Frisk?
If, during a Terry frisk, an officer finds something they reasonably believes to be a weapon, it can always be seized. If, instead, the officer finds something she recognizes as contraband WITHOUT manipulating the object, she can seize it as well
Terry Stops and Frisks - Car “Frisks”
When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the PASSENGER cabin of the vehicle, limited to those areas in which a weapon may be placed or hidden
Terry Stops and Frisks - Protective Sweeps
When making an in-home arrest, police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety
Terry Stops and Frisks - Evidentiary Standards
Reasonable Suspicion, which is less than probable cause
Terry Stops and Frisks - How does Reasonable Suspicion Apply?
Requires SPECIFIC and ARTICULABLE facts that inform an officer’s belief that criminal activity is present
ONLY concerned with SUBJECTIVE reasonableness
Terry Stops and Frisks - How does Reasonable Suspicion Apply to Terry Frisks
Requires specific and articulable facts that suggest a suspect is armed and dangerous.
REMEMBER: A Terry Frisk is justified by a concern for officer safety ONLY; it is NOT a general search for criminal activity
Terry Stops and Frisks - Can informants satisfy the reasonable suspicion standard?
YES, provided the tip contains sufficient predictive information corroborated by the police to establish the informant’s credibility
What evidentiary standards apply in “Protective Sweeps”?
a. Whenever they are making an in-home arrest, officers have the authority, without probable cause or reasonable suspicion, to look in areas adjoining the place of arrest from which an attack could be immediately launched
b. To justify a “sweep” of more remote areas, the arresting officers must have additional facts sufficient to allow them to conclude that an individual who may threaten officer safety is present in the area-swept
Special Needs - No suspicion you’re doing anything wrong - 6 Types
- Drug Testing
- Parolees
- School Searches
- Government Employees
- Border Searches
- “Non-law-enforcement Primary Purpose” Test
Special Needs - Drug Testing
The SC has approved drug testing in a variety of contexts, including:
- railroad employees, following an impact accident
- custom agents responsible for drug interdiction; and
- Public School Children
Special Needs - Parolees
Warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole
Special Needs - School Searches
Warrantless searches of the person and the effects of public school children are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is reasonable at its inception and is not ecessively intusive in light of the age and sex of the student and the nature of the infraction
Special Needs - Government Employees
Warrantless searches of government employees’ desks and file cabinets are permissible, provided the searches are reasonable at their inception and scope
Special Needs - Border Searches
Neither citizens nor non-citizens have any 4th rights at the border with respect to searches of persons and effects
Special Needs - “Non-law-enforcement primary purpose” Test
The special needs doctrine does not include law enforcement programs or practices WHOSE PRIMARY PURPOSE is to gather criminal evidence for general use by law enforcement
