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?

Question 1

The 8 Exceptions to the Warrant Requirement

Answer 1

“ESCAPIST”

Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry “Stop and Frisk”

Question 2

Exigent Circumstances - 3 Types

Answer 2

1. Evanescent Evidence
2. “Hot Pursuit” of a Fleeing Felon
3. “Emergency Aid” Exception

Question 3

Evanescent Evidence

Answer 3

Evidence that would DISSAPPEAR or vanish in the time it would take to get a warrant

ex: tissue under a suspect’s fingernails

Question 4

“Hot Pursuit” of a Fleeing Felon

Answer 4

1. Hot Pursuit allows police officers to enter the home of a suspect or a third party to search for a fleeing felon
2. During hot pursuit, any evidence of a crime discovered in while searching for the suspect is admissible

Question 5

Search Incident to Arrest - 4 Elements

Answer 5

1. Arrest
2. “Timing”
3. Geographic Scope
4. Automobiles searched incident to a custodial arrest

Question 6

Arrest

Answer 6

aka “custodial” arrest: must be a custodial arrest

Question 7

Timing

Answer 7

The search must be CONTEMPORANEOUS in time AND place with the arrest

Question 8

Geographic Scope + 3 Examples

Answer 8

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

1. 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
2. DNA Evidence: Police may lawfully take a DNA sample by swabbing the cheek of an individual arrested for a serious offense
3. Drunk Driving: Incident to arrests for drunk driving, 4th permits breath tests BUT NOT blood tests

Question 9

Automobiles Searched Incident to a Custodial Arrest

Answer 9

1. Permissible Scope: Passenger cabin, including closed containers, but not the truck
2. “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

Question 10

Consent - Standard

Answer 10

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

Question 11

Consent - Scope of Consent

Answer 11

An officer’s consent to search extends to all areas for which a REASONABLE OFFICER would believe permission to search was granted

Question 12

Consent - “Apparent” Authority

Answer 12

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

Question 13

Consent - Shared Premises

Answer 13

1. When adults share a residence, ANY resident can consent to a search of common areas within it.
2. 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

Question 14

“Automobile” Exception - Standard

Answer 14

Police officers need PROBABLE CAUSE to believe that contraband or evidence of a crime will be found in the vehicle

Question 15

“Automobile” Exception - Where can police officers search?

Answer 15

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

Question 16

Traffic Stops and Auto Searches

Answer 16

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

Question 17

Plain View - 3 Requirements

Answer 17

1. Lawful access to the place from which the item can be plainly SEEN
2. Lawful access to the item itself; and
3. the criminality of the item must be immediately apparent

Question 18

Inventory Searches - 2 Most Common Occurance

Answer 18

1. Arrestees: when they are booked into jail
2. Vehicles: When they are impounded

Question 19

Inventory Searches - They are constitutional provided that they . . . 3 Things

Answer 19

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, that is, it is motivated SOLELY by the need to safeguard the owner’s possessions and/or to ensure officer safety

Question 20

Terry Stops and Frisks - What is a Terry Stop

Answer 20

It is a brief detention of “seizure” for the purpose of investigating suspicious conduct

Note: can take place anywhere

Question 21

Terry Stops and Frisks - When are you seized?

Answer 21

1. Based on the totality of the circumstances, a reasonable person would not feel free to leave
2. 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

Question 22

Terry Stops and Frisks - Police Pursuit and “Seizure”

Answer 22

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

Question 23

Terry Stops and Frisks - Traffic Stops (3 Important Principles)

Answer 23

1. in a stop, both the driver AND the passengers are seized, such that EITHER can challenge the legality of the stop
2. In a stop, the officer may, in their discretion, order both the driver AND the passengers out of the car
3. Dog sniffs at traffic stops are permissible, provided the “sniff” does not prolong the stop

Question 24

Terry Stops and Frisks - Terry Frisk: What is a Terry Frisk?

Answer 24

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

Question 25

Terry Stops and Frisks - Terry Frisk: What can You Seize in a Terry Frisk?

Answer 25

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

Question 26

Terry Stops and Frisks - Car “Frisks”

Answer 26

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

Question 27

Terry Stops and Frisks - Protective Sweeps

Answer 27

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

Question 28

Terry Stops and Frisks - Evidentiary Standards

Answer 28

Reasonable Suspicion, which is less than probable cause

Question 29

Terry Stops and Frisks - How does Reasonable Suspicion Apply?

Answer 29

Requires SPECIFIC and ARTICULABLE facts that inform an officer’s belief that criminal activity is present

ONLY concerned with SUBJECTIVE reasonableness

Question 30

Terry Stops and Frisks - How does Reasonable Suspicion Apply to Terry Frisks

Answer 30

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

Question 31

Terry Stops and Frisks - Can informants satisfy the reasonable suspicion standard?

Answer 31

YES, provided the tip contains sufficient predictive information corroborated by the police to establish the informant’s credibility

Question 32

What evidentiary standards apply in “Protective Sweeps”?

Answer 32

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

Question 33

Special Needs - No suspicion you’re doing anything wrong - 6 Types

Answer 33

1. Drug Testing
2. Parolees
3. School Searches
4. Government Employees
5. Border Searches
6. “Non-law-enforcement Primary Purpose” Test

Question 34

Special Needs - Drug Testing

Answer 34

The SC has approved drug testing in a variety of contexts, including:

1. railroad employees, following an impact accident
2. custom agents responsible for drug interdiction; and
3. Public School Children

Question 35

Special Needs - Parolees

Answer 35

Warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole

Question 36

Special Needs - School Searches

Answer 36

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

Question 37

Special Needs - Government Employees

Answer 37

Warrantless searches of government employees’ desks and file cabinets are permissible, provided the searches are reasonable at their inception and scope

Question 38

Special Needs - Border Searches

Answer 38

Neither citizens nor non-citizens have any 4th rights at the border with respect to searches of persons and effects

Question 39

Special Needs - “Non-law-enforcement primary purpose” Test

Answer 39

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