Criminal Procedure: Search + Seizure Flashcards
When is search or seizure governed by 4th Amend.?
If executed by government official and there was a reasonable expectation of privacy in area searched or item seized
Who are government actors for 4th Amend. purposes?
- Public police
- Private citizens acting per police
- Private police if deputized to arrest
What are 4th Amendment protected areas?
- Persons
- Houses (and curtilage)
- Papers
- Effects (bags)
What are 4th Amendment unprotected areas?
Anything knowingly exposed to third parties
When 4th Amend. standing?
- Own, reside, overnight guest in premises
- Own property seized if reasonable expectation privacy in AREA from which seized
NOT in residence used solely for business
When does search warrant comply with 4th Amend.?
- Warrant supported by probable cause and particularity
- If not, officers relied on defective warrant in good faith (not in NY)
- Warrant properly executed by police
What is enough for probable cause for warrant?
Requires proof of “fair probability” that contraband or evidence of crime will be found in area searched
Hearsay admissible
Is anonymous informant information for warrant good enough to get warrant?
MBE: enough corroboration for magistrate to make common sense determination probable cause exists
NY: must establish informant’s basis of knowledge AND veracity or reliability
How particular does the warrant have to be?
Must specify place to be searched AND items to be seized
When does officer’s good faith save defective search warrant?
NY: Never
Generally overcomes, EXCEPT:
- Affidavit supporting warrant so egregiously lacking probable cause no reasonable officer would have relied
- Affidavit supporting warrant so egregiously lacking particularity no reasonable officer would have relied
- Affidavit relied upon by magistrate contained knowing or reckless falsehoods
- Magistrate biased in favor of prosecution
When is search warrant properly executed by police?
- Officers comply with terms/limitations of search warrant
2. Officers comply with “knock and announce” rule
What is the knock and announce rule?
Police must knock and announce their presence AND their purpose before forcibly entering place to be searched
UNLESS officer reasonably believes that doing so would be futile, dangerous, or inhibit the investigation
What is the acronym for exceptions to warrant requirement?
ESCAPIST
- Exigent circumstances
- Search incident to arrest
- Consent
- Automobile
- Plain view
- Inventory
- Special needs
- “Terry” stop and frisk
Describe what the exigent circumstances are that mean an officer can search without a warrant.
Evidence that would dissipate or disappear in time it would take to get a warrant
Hot pursuit allows police to enter suspect’s or third party’s house into which he fled; during that time, any evidence of a crime in plain view while searching for suspect admissible
What are the rules when I want to perform a search incident to arrest?
Arrest must be lawful
Search must be contemporaneous
Can search wingspan, which includes body, clothing, and containers within arrestee’s immediate control
NY: to search containers police must suspect he is armed
What does an automobile search incident to arrest involve?
Interior cabin, including closed containers, but not trunk
Once officer secured arrestee, officer can search vehicle ONLY if reason to believe vehicle may contain evidence of offense for which arrest made
NY: once occupant out of car, cannot search closed containers or bags to look for evidence or weapons
What is the automobile exception?
Must have probable cause to believe contraband or evidence of crime will be found
Can search passenger cabin plus trunk, may open any package, luggage, or other container that may reasonably contain items for which PC to search
What is the plain view exception to having to obtain a warrant?
- Lawful access to place from which item can be plainly seen
- Lawful access to item itself
- Criminality of item must be immediately apparent
What is the inventory search exception to having to obtain a warrant?
Regulations governing them must be reasonable AND search must comply with those regulations
When arrestee booked into jail and when vehicle impounded
What is the special needs exception to having to obtain a warrant?
- Random drug testing (railroad, customs, public schools)
- Government employees’ desks and files
- Students’ effects in public schools
- Border
What is a terry stop and frisk exception to the need for a warrant?
Stop: brief detention or seizure for purpose of investigating suspicious conduct
Frisk: patdown of body and outer clothing for weapons
Must have reasonable suspicion (less than PC)
What is the evidentiary standard for a stop?
Specific and articulable facts informing officer’s belief that criminal activity is present
What is the evidentiary standard for a frisk?
Specific and articulable facts suggesting suspect is armed and dangerous
What can you seize in a terry frisk?
MBE: always a weapon; anything recognized as contraband without manipulating the object
NY: only what feels like a weapon
What is the remedy if the search has been found to be unreasonable, no warrant, situation did not fall into exceptions and it is unconstitutional under the 4th amendment?
Remedy is to suppress information obtained in that search.
Where will the court not suppress information even if the search was unreasonable and unconstitutional?
1) Police believe that the warrant was valid, if believed it was valid and searched will not be suppressed.
2) Used at proceeding other than trial on merits.
3) Used to impeach D that has testified.
The court is not saying it was constitutional, just not giving a remedy.
Is pursuit a seizure?
In NY, yes, in and of itself
What are the requirements of a wiretap warrant?
- Name suspected persons
- PC that specific crime committed
- Particularity of conversations overheard
- Strictly limited time period
What is the standard of proof for arrest?
Probable cause
