Criminal Procedure: Search and Seizure Flashcards
If you see a search (of a premises, thing, or person) or a seizure (of a thing or person), ask the following three questions:
Question 1: Does the 4th amendment apply?
Fourth Amendment applies to searches or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation
of privacy.
Does the person have a reasonable expectation of privacy?
Who has a reasonable expectation of privacy?
A person has standing to raise a Fourth Amendment challenge if she has an expectation of privacy in the thing searched or seized.
Government agent
Police officers are the most obvious government agents.
Less obvious examples:
private citizens following police direction, public school administrators (like principals), and security personnel deputized with the power to arrest.
Question 2: Does the search or seizure satisfy the Fourth Amendment?
A search or seizure satisfies the Fourth Amendment if it is: (1) properly conducted pursuant to a valid warrant, or (2) if an exception to the warrant requirement applies.
A warrant is valid if it is:
(1) issued by an unbiased magistrate (neutral and detached) and,
(2) is supported by probable cause (based on the facts and circumstances) and
(3) particularity (warrant is specific about the people or places to be searched or items to be seized).
Probable cause: Informant
An informant (anonymous or identified) can provide probable cause if the totality of the circumstances suggest that the tip is reliable.
A tip is considered reliable if it is corroborated or if an informant was known to be reliable.
Wiretap warrant
Execution of a search warrant
A government agent properly executes a valid warrant by: (1) complying with its terms and
(2) following the knock-and-announce rule.
A note on arrest (“seizure”) warrants
An arrest occurs when a suspect submits to police custody.
Police may arrest suspects of all crimes, even those that do not require jail time.
An arrest requires probable cause i.e., that under the totality of the circumstances, an objectively reasonable police officer would find “a probability or substantial chance” that the person has committed the crime.
When is an arrest warrant required?
Protective sweeps
Invalid warrant but exception saves
Invalid warrant BUT good faith by the officer “saves it” and thus the evidence is not suppressed.
Exceptions where good faith does not save a defective search warrant:
(1) serious affidavit issue:
(2) Serious warrant issue: warrant is so facially deficient in particularity that the executing officers could not reasonably presume it is valid
(3) serious magistrate issue: magistrate abandoned his neutral posture
Exceptions to the warrant
requirement
(1) Consent exception
(2) Plain view exception
(3) Exigent-circumstances doctrine/hot pursuit exception
(4) Search incident to lawful arrest exception
(5) Automobile (vehicle) exception
(6) Administrative search
Stop and frisk cases—the Terry standard of reasonable suspicion
Terry stop
A Terry stop is a brief seizure of a suspect to investigate criminal activity. The stop must be justified by an officer’s reasonable suspicion that a criminal activity is afoot.
Reasonable suspicion exists when a reasonable person (objective standard) would believe, based on specific and articulable facts (not a mere hunch), that criminal activity is present.
When is a stop equivalent to an arrest?
Terry frisk
A Terry frisk is a pat down of a suspect’s body and clothing justified by officer safety based on an officer’s reasonable suspicion that the suspect is armed and dangerous.
Factors that can create reasonable suspicion:
(1) suspect is believed to be involved in a crime involving a weapon or the trafficking of large amounts of drugs
(2) suspect acts aggressively
(3) there is a bulge under the suspect’s clothing that could be a weapon
(4) suspect is present in a high crime neighborhood (this must be combined with other factors)
Car frisks
If, during a routine traffic stop, an officer reasonably believes a suspect is armed and dangerous, he may search the interior of the vehicle for weapons that would be accessible to the driver, including those in closed containers.
Is the evidence obtained in violation of the Fourth amendment admissible anyway?
Consider
(1) Exclusionary Rule
(2) Exceptions to exclusionary rule
Exclusionary Rule
The exclusionary rule makes both physical and testimonial evidence obtained in deliberate, reckless, or grossly negligent violation of the Fourth inadmissible against the person whose rights were violated. The purpose of this is to deter police officers from acting improperly.
Indirect evidence: the fruit of the poisonous tree doctrine
Exceptions to exclusionary rule
(1) Inevitable discovery - evidence initially discovered through an unlawful search but that would have been discovered by lawful means, is admissible.
(2) *Independent source *- evidence intially discovered during an unlawful search, but later obtained independently through activities untainted by illegality, is admissible
(3) Taint disappears due to time or intervening circumstances (attenuation) - evidence obtained after police misconduct or a violation of 4th amendment is still admissible if the connection between the misconduct and the evidence has become sufficiently attenuated, either by the passage of time or other
intervening circumstances, to dissipate the taint.
Limitations on the exclusionary rule—When does it simply not apply at all?
(1) Standing: Where the person who is trying to suppress the evidence does not have standing to challenge the search. Only victims of the actual violation can challenge it.
(2) Impeachment: when the exclusionary rule prevents the prosecution from using evidence in its case-in-chief, evidence can still be used to impeach the defendant’s testimony.
(3) Civil and other proceedings: This includes grand juries, deportation hearings, parole revocation hearings, civil actions by the IRS or proceedings for violation of internal agency rules or state law, etc.
