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
