CrimPro Flashcards
4th Amendment
a. Search and Seizures b. Arrests and detention
4th amendment
4th Amendment – The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.
Government Actor/ State Action
Government Actor/ State Action - 2-3 sentences showing a government actor to show the 4th Amendment applies.
*Consider – Includes paid police on or off duty, as well as citizens acting at their direction.
standing
Standing – In order to allege a 4th Amendment violation, a person must show that it was their 4th Amendment right that was violated. They must have standing which requires a person to have a reasonable expectation of privacy to the item or area searched/seized.
*Consider - Standing is judged under the “totality of the circumstances”. Standing is automatic is you owned or had right to possess the place searched, it is your home or you are an overnight guest.
Reasonable expectation of privacy
Reasonable Expectation of Privacy – Can be determined using the standard from Katz.
Harlan’s two-pronged test:
1) Has the citizen manifested a subjective expectation of privacy?: what actions did they take to make this private?
2) Is the interest one that society is prepared to accept as reasonable?
*Consider: Electronic Surveillance – Wiretapping considered a search always need a warrant, wired informant is not because of assumption of risk.
Luggage – squeezing is a search, smelling luggage is not a search.
No REP – Illegal activity, bank records, open fields, trash, automobile movements.
Yes REP - Homes, Hotel Rooms, Telephones, Car, Curtilage, Containers
Curtilage Test:
1) Distance between home and area claimed to be curtilage.
2) Was area within a fence or enclosure surrounding home.
3) Whether uses within area correspond to intimate activities of home.
4) Steps taken by resident to protect area from public view.
Warrant: if yes
Warrant - If yes,
A warrant must: 1)Be issued by a detached and neutral magistrate.
2) Be based on probable cause.
3) Particularly describe the place to be searched and the items to be seized. Must be precise on its face, it not it will be unconstitutional even if the affidavit does give the detail needed.
Arrest Warrant
Arrest Warrant – Police must have an arrest warrant to affect a nonemergency arrest of an individual in their home.
*Consider – Absent exigent circumstances the police executing an arrest warrant may not search for the subject in the home of a 3rd party.
Execution of Arrest Warrant
Execution of Arrest Warrant – Must be by police without unreasonable delay and “knock and announce” is required. Police may seize further evidence of the crime and can detain occupants but can’t search them without probable cause.
*Consider – no announcement is needed if there is reasonable suspicion that knocking and announcing would be dangerous of futile or would inhibit the investigation. Ex. Destruction of evidence.
knock and announce
Knock and Announce Violations – Exclusion is not an available remedy for violations of knock and announce rule pertaining to execution of a warrant.
warrant invalidated
Warrant Can be Invalidated – By
1) False Statement in affidavit.
2) Intentionally of recklessly including a false statement.
3) False Statement was material to the finding of probable cause.
good faith reliance/exception
Good Faith Reliance/Exception - The exclusionary rule does not apply when the police arrest or search someone erroneously, but in good faith, thinking they are acting pursuant to a valid warrant.
*Consider Limitations – 1) Affidavit is so lacking in PC that no reasonable officer would rely. 2) Warrant defective on its face. 3) Officer obtaining warrant lied or misled magistrate. 4) The magistrate has “wholly abandoned his judicial role”.
Warrant: if no?
Warrant – If No,
Does an exception apply?
Warrantless Exceptions:
Search incident to lawful arrest Consent Automobile Exception Plain: view/touch/smell exception Exigency:Hot Pursuit/Evanescent evidence/Emergency exceptions Stop and frisk/ terry stop Special needs ----------------------------------- The "frisk" reasonable suspicion probable cause arrest
incident to lawful arrest
Police may search the suspect incident to lawful arrest and any areas within the “wingspan” or “grab area” – area within suspect’s immediate control. They may also make a “protective sweep” of the area beyond wingspan if they reasonably believe accomplices may be present.
*Consider – If arrested in a car – The police may search the interior of the car incident to arrest if: 1) arrestee is unsecured and still may gain access to interior of vehicle. OR 2) Police reasonably believe the evidence of the offense for which the person was arrested may be found in the vehicle.
arrest
Arrest - When the police take a person into custody against their will for purposes of criminal prosecution or interrogation.
*Consider – An arrest is not invalid if original grounds at the time of arrest prove erroneous as long as the officer had other grounds on which there was PC for an arrest.
Arresting in a public place: 1)Felony – reasonable grounds to believe that a felony had been committed by that person. 2) Misdemeanor – Crime must be committed in police presence.
An unlawful arrest by itself has no impact on criminal prosecution. But the evidence that is the fruit of that illegal arrest will be excluded under the exclusionary rule.
probable cause exception
Probable cause -You must have probable cause in order to make a lawful arrest in the absence of a warrant. Probable cause is present when the officer has within their knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime. Based on the totality of the circumstances.
*Consider – If an officer has PC a traffic law has been violated, he can stop the car even if motive is to gather RS for another crime.
If Officer has RS he can order occupants out of car for a traffic stop in the interest of safety. If officer reasonably believes detainee is armed or dangerous, he can do a frisk and can also do a search of the vehicle for weapons, even after driver and passenger are out of the vehicle.
Informant’s Tip as source of suspicion of criminal activity – must be accompanied by indicia of reliability sufficient to make the officer’s suspicion reasonable. Ex. Predicting future movements.
automobile exception
Automobile Exception – If police have probable cause to believe an automobile contains contraband, fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant. Officer must have reasonable and articulable suspicion that a law had or was being violated in order for stop to be lawful.
*Consider – Police can search the entire vehicle and all containers that might reasonably contain the item they are looking for, can’t exceed scope. They can search passengers and their belongings. If a container was recently placed in the vehicle – police can only search that container.
plain view/touch/smell exception
Plain View/ Touch/Smell Exception – Police may make a warrantless seizure when they:
Are legitimately on the premises
Discover evidence, fruits or instrumentalities of crime or contraband.
See evidence in plain view.
Have probable cause to believe the item is evidence, contraband, fruits or instrumentalities of crime. Readily Apparent.
consent
The police may search if they have a voluntary and intelligent consent to do so.
*Consider – An officers false announcement he has a warrant negates the consent.
Authority – any person with an apparent equal right to use or occupy property may consent. If it turns out they did not have authority the consent is still valid if police acted reasonably. If one party objects, there is no consent. A parent generally has authority to consent to child’s room, but depending on the child’s age may not be able to consent to the search of a locked container.
stop and frisk/terry stop
Stop and Frisk / Terry Stop – Police have the authority to briefly detain a person for investigatory purposes even if they lack PC to arrest. They must have reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime. Requires physical application of force by officer or a submission to the officer’s show of force.
*Consider – A seizure or “stop” occurs when a reasonable person would not believe they are free to leave. If during a terry stop, the officer develops PC, the detention becomes an arrest and he can conduct a full search incident to arrest.
Identification can be required during a terry stop, if refused they may be arrested – and searched incident to valid arrest.
reasonable suspicion
Reasonable Suspicion - A particularized and objective basis for suspecting criminal activity is affoot or that the person encountered was involved (or is wanted) in connection with a completed felony. More than a vague suspicion, it not as much as probable cause. Judged under the Totality of the Circumstances.
*Consider – Police may briefly seize items upon reasonable suspicion that they are or contain contraband or evidence, but seizure must be a limited time.
the frisk
The “Frisk” – If the police also have a reasonable suspicion to believe that the detainee is armed or dangerous, they can also conduct a frisk (a limited search) to ensure the detainee has no weapons.
*Consider:
Officer may pull out any item the officer reasonably believes is a weapon.
If a vehicle is stopped for a traffic violation the police can frisk occupants and conduct a limited protective search of interior of the car for weapons if reasonable suspicion occupants are armed or dangerous.
To be a valid terry stop it must be relatively brief and not longer than necessary to conduct a limited investigation to verify officer’s suspicion.
Hot Pursuit
Hot Pursuit - Police officers in hot pursuit of a fleeing felon by 15mins.may make a warrantless search and seizure. May pursue into private dwellings.
evanescent evidence
Evanescent Evidence - The police may seize evidence likely to disappear before a warrant can be obtained. Ex. Drugs – destruction of evidence.
emergency exceptions
Emergency Exception – Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search. Ex. Officers believe someone is injured or being injured inside a house, they can enter.
administrative searches
Administrative Searches – Impounded vehicles can be searched completely including closed containers in order to protect the owner and the police. Booking Procedure – a person can be searched completely and items cataloged to protect the owner and the police.
Consider - The Key is that these are not investigatory in nature.
