Exam 2 Flashcards
Fourth Ammendement
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
4A: Persons
Anything connected to or within the person’s body.
Includes hair, DNA, blood, breath, embedded bullets, etc.
4A: Houses
A place where people live, including apartments, RVs, etc.
4A: Papers
Originally paper, today includes all types of documents in any form.
4A: Effects
Personal property, cars, backpacks, storage sheds, etc.
4A Application
Applies only to government.
A private search can be unlawful, but is not subject to constitutional violation.
4A Clauses
Reasonableness Clause.
Warrant Clause.
4A Reasonableness Clause
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
ALL searches must be reasonable.
Reasonable expectation of privacy.
Reasonable Expectation of Privacy
An expectation of privacy that society is willing to recognize as reasonable.
Open fields are an exception.
Society’s expectation, not the individuals.
4A Warrant Clause
No warrants shall issue, but upon probable cause particularly describing the place to be searched and the persons or things to be seized.
Sets forth clear preference for warrants.
Imposes an unbiased fact-finder as a buffer between the citizen and law enforcement.
Applies to people, places, and items.
Probable Cause
Threshold of proof required under 4A for issuance of warrant.
Not defined anywhere in constitution.
More likely than not, > 50%.
Fair probability under totality of circumstances.
More than mere suspicion.
Level of information and evidence that would cause a reasonable person to believe the fact asserted.
Search Warrant: Required Documents
Affidavit.
Search Warrant.
Return and Inventory.
Affidavit: Definition
Sworn statement of officer setting forth facts amounting to probable cause (pretty please statement).
Application to judge.
Officer must meet with judge and prosecutor for review.
Officers swears to it in front of judge.
Search Warrant: Definition
Order of the judge commanding police to execute the search and authorizing the seizure of evidence.
Once issued, doesn’t need to be present to begin, but must be present when finished.
Generally one page.
Search Warrant: Return and Inventory
Officer must return to judge and swear that search was executed and provide inventory of items taken.
Usually required within 10 days of issuance.
Search Warrant: Requirements
Probable cause that:
- A crime has occurred.
- Particular evidence of that crime is in a particular place.
- That evidence is in that particular place right now.
Affiant
The officer who drafts the affidavit and swears to it before a judge.
Affidavit: Suggested Sections (Federal)
- Introduction.
- Officer background/authority.
- Target of investigation and violations.
- Jurisdiction.
- Purpose of request.
- Facts and circumstances establishing probable cause.
- Summation.
- Attachments (“A” place to be searched, “B” items to be seized).
Oklahoma Warrant Statute
A search warrant is an order in writing, in the name of the
state, signed by a magistrate, directed to a peace officer,
commanding him to search for personal property and bring it before the magistrate.
Search Warrant Form v. Substance
What you say, not how you say it.
Substance more important than form.
Present info in logical order.
Don’t assume magistrate knows, be detailed.
Four Corners Document Test
Probable cause must be established within the four corners of the document.
The document must stand on its own.
Information Establishing Probable Cause
Direct Information.
Hearsay Information.
Direct Information
The affiant has first-hand knowledge of the stated facts.
Hearsay Information
Information provided by witnesses and not known first-hand by the affiant.
Hearsay information is permissible in SW affidavit provided the affiant believes it to be reliable.
Search Warrant General Time Frame for Occupied Dwellings (OK)
Search warrants to be served 6 AM and 10 PM, unless judge finds existence of various circumstances.
If any of these criteria are met, judge may assert that the warrant be served day or night.
Search Warrant Time Frame Exceptions (OK)
- Evidence is on premises only between 10 PM and 6 AM.
- Search is a crime scene search.
- Affidavits positive that property is on person, or in place to be searched, and there is a likelihood of property being destroyed, moved, or concealed.
- Search for evidence relating to illegal manufacture of meth or other controlled dangerous substance.
Search Warrant General Time Frame for Non-Occupied Dwellings (OK)
SW for sites other than occupied dwellings can be served at any time without special permission.
Knock and Announce: Rule
Federal and state statutes require that police first knock and announce their presence before making entry or forced entry to execute a SW.
If not home, try to contact them to open door.
Knock and Announce: No-admittance
Police may break into premises to execute SW if, after notice of authority and purpose, they are refused admittance or the facts amount to constructive refusal.
Knock and Announce: Rationale
Decreases potential for violence.
Decreases mistakenly entering wrong residence.
Provides occupants chance to cooperate.
Minimize privacy intrusions.
Minimizes possibility of property damage.
Knock and Announce: Wait Period
Required to wait for voluntary admittance or constructive refusal.
5-10 seconds.
Knock and Announce: Constructive Refusal
Time passes.
Door click = lock.
Running and shouting.
Knock and Announce: Force
Amount of force reasonably necessary to safely gain entry.
Telephonic Search Warrant
Federal Rules of Criminal Procedure 41(c) authorize a SW over the phone, email, fax, etc. if circumstances make it reasonable to dispense with an affidavit.
Often handwritten version left upon leaving.
All usual requirement still need done although after search has already taken place.
Official version of warrant sent to occupants later.
Telephonic Search Warrant: Requirements
Conversation between affiant and judge must be recorded.
Affiant and judge must agree on language of SW.
Officer prepares a duplicate and judge an original.
Telephonic Search Warrant: Time Frame
Many jurisdictions require affiant to submit written affidavit within a few days of telephonic application, and that the initial conversation be recorded.
Anticipatory Search Warrant
A warrant based on an affidavit showing probable cause that at some future time (not now) certain evidence of a crime will be located at a specific place.
Example: Illegal contraband being mailed.
Search Warrant: Being Particular
Not just the address, but detailed description of house.
Describe people or items to be seized.
Include EVERYTHING you might want to search, including cars.
No-Knock Warrant
Can enter at any time without warning.
Search Incident to Arrest
Officer safety is paramount - can search for weapons or people that could do harm.
Search Warrant: Misc.
Can only go in once, otherwise need a new one.
Leave a copy of inventory taken at place searched.
May secure/take control of crime scene before warrant is officially issued.
State v. Federal Search Warrant
State SW shorter, no cover page, less formal.
Same information required, constructed differently.
Affidavit: Attachments
Specifically describe items/place to be searched/seized.
Can’t know everything you mind need/find, but try!
Can use existing templates for attachments for different types of cases but must tweak accordingly.
Types of Lawful Searched for Dwellings
- With a SW warrant upon finding probable cause.
2. Pursuant to a recognized exception to the the search warrant requirement.
Search Warrant Requirement Exceptions
Consent. Exigent circumstances. Hot pursuit. Open fields. Plain View. Abandoned property.
Consent
When a person consents to a search of their person, house, papers, or effects, no search warrant is needed.
It is reasonable to search if there is no objection.
Consent Requirements
Person must have lawful authority to consent.
Consent must be voluntary.
Lawful Authority to Consent
Must have legitimate expectation of privacy.
Lawful authority = sufficient legal interest.
Example: A hotel clerk or apt. manager cannot consent to renter’s room, minor cannot consent to parent’s house.
Discernment of Lawful Authority to Consent
Police must in good faith determine if party has lawful authority.
The test is not whether police were right, but if their conclusion was reasonable.
Voluntary Consent
Police cannot force consent.
Police do not have to tell a party they can refuse.
It does not have to be in writing.
However, many departments do both.
Voluntary Consent Form
Written.
Knowing.
Specific.
Voluntary (signature).
Consent Limitations
Party can revoke consent at any time.
Party can limit search to certain areas only.
Consent for Dual Occupancy
If 2 persons share a residence, they can only consent to the area they control (their room) and common areas.
Exigent Circumstances
When an emergency exists, officers can enter a home or private dwelling without a warrant and with force.
Exigent Circumstances Rationale
Protect people’s lives or property.
Prevent the destruction of evidence.
Hot Pursuit
When in “hot pursuit” of a subject who committed a “major” offense, they may pursue that person from a public place to another public or private place (including the subject’s home) and search him there without a warrant.
Oklahoma Police Officer Law
Any sworn law enforcement officer (like OK-based FBI) can function as any OK officer.
Hot Pursuit Justification
Evidence could be destroyed.
Subject could escape.
Subject could obtain a weapon.
Emergency Exceptions
When locating a person (victim or subject) or a dangerous item is a matter of life or death, the courts generally allow a search without a warrant.
Ex. Kidnapped children, explosives present, armed suspect is hiding, fire in progress, etc.
Fragile/transient/evanescent evidence.