Exam 2 Flashcards
1
Q
Fourth Ammendement
A
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
2
Q
4A: Persons
A
Anything connected to or within the person’s body.
Includes hair, DNA, blood, breath, embedded bullets, etc.
3
Q
4A: Houses
A
A place where people live, including apartments, RVs, etc.
4
Q
4A: Papers
A
Originally paper, today includes all types of documents in any form.
5
Q
4A: Effects
A
Personal property, cars, backpacks, storage sheds, etc.
6
Q
4A Application
A
Applies only to government.
A private search can be unlawful, but is not subject to constitutional violation.
7
Q
4A Clauses
A
Reasonableness Clause.
Warrant Clause.
8
Q
4A Reasonableness Clause
A
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.
9
Q
Reasonable Expectation of Privacy
A
An expectation of privacy that society is willing to recognize as reasonable.
Open fields are an exception.
Society’s expectation, not the individuals.
10
Q
4A Warrant Clause
A
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.
11
Q
Probable Cause
A
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.
12
Q
Search Warrant: Required Documents
A
Affidavit.
Search Warrant.
Return and Inventory.
13
Q
Affidavit: Definition
A
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.
14
Q
Search Warrant: Definition
A
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.
15
Q
Search Warrant: Return and Inventory
A
Officer must return to judge and swear that search was executed and provide inventory of items taken.
Usually required within 10 days of issuance.
16
Q
Search Warrant: Requirements
A
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.
17
Q
Affiant
A
The officer who drafts the affidavit and swears to it before a judge.
18
Q
Affidavit: Suggested Sections (Federal)
A
- 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).
19
Q
Oklahoma Warrant Statute
A
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.
20
Q
Search Warrant Form v. Substance
A
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.
21
Q
Four Corners Document Test
A
Probable cause must be established within the four corners of the document.
The document must stand on its own.
22
Q
Information Establishing Probable Cause
A
Direct Information.
Hearsay Information.
23
Q
Direct Information
A
The affiant has first-hand knowledge of the stated facts.
24
Q
Hearsay Information
A
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.
25
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.
26
Search Warrant Time Frame Exceptions (OK)
1. Evidence is on premises only between 10 PM and 6 AM.
2. Search is a crime scene search.
3. 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.
4. Search for evidence relating to illegal manufacture of meth or other controlled dangerous substance.
27
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.
28
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.
29
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.
30
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.
31
Knock and Announce: Wait Period
Required to wait for voluntary admittance or constructive refusal.
5-10 seconds.
32
Knock and Announce: Constructive Refusal
Time passes.
Door click = lock.
Running and shouting.
33
Knock and Announce: Force
Amount of force reasonably necessary to safely gain entry.
34
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.
35
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.
36
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.
37
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.
38
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.
39
No-Knock Warrant
Can enter at any time without warning.
40
Search Incident to Arrest
Officer safety is paramount - can search for weapons or people that could do harm.
41
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.
42
State v. Federal Search Warrant
State SW shorter, no cover page, less formal.
| Same information required, constructed differently.
43
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.
44
Types of Lawful Searched for Dwellings
1. With a SW warrant upon finding probable cause.
| 2. Pursuant to a recognized exception to the the search warrant requirement.
45
Search Warrant Requirement Exceptions
```
Consent.
Exigent circumstances.
Hot pursuit.
Open fields.
Plain View.
Abandoned property.
```
46
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.
47
Consent Requirements
Person must have lawful authority to consent.
| Consent must be voluntary.
48
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.
49
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.
50
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.
51
Voluntary Consent Form
Written.
Knowing.
Specific.
Voluntary (signature).
52
Consent Limitations
Party can revoke consent at any time.
| Party can limit search to certain areas only.
53
Consent for Dual Occupancy
If 2 persons share a residence, they can only consent to the area they control (their room) and common areas.
54
Exigent Circumstances
When an emergency exists, officers can enter a home or private dwelling without a warrant and with force.
55
Exigent Circumstances Rationale
Protect people's lives or property.
| Prevent the destruction of evidence.
56
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.
57
Oklahoma Police Officer Law
Any sworn law enforcement officer (like OK-based FBI) can function as any OK officer.
58
Hot Pursuit Justification
Evidence could be destroyed.
Subject could escape.
Subject could obtain a weapon.
59
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.
60
Fragile/Transient/Evanescent Evidence
Evidence that can quickly dissipate, disappear, or be easily destroyed (often because it's on the body of subject).
Ex. Blood under fingernails, alcohol in blood of DUI subject, etc.
61
Open Fields
4A protection does not extend to open fields, as there is no reasonable expectation of privacy in those areas.
Officers can enter open fields without a SW.
Curtilage does not count as open fields.
62
Curtilage
Immediate area surrounding the house (yard, driveway).
Usually ends at fencing or parked cars.
Protected by (case) law.
63
Plain View
Items lying in plain sight.
Must become aware of item by sight (not smell or hearing) and have immediate access to it.
Must be legally present, in a place you have the right to be.
Must be able to readily identify the item as evidence or illegal.
64
Abandoned Property
Property a person has no intention to keep.
Placed in trash bin or on street for pick-up.
Tossed out car window or away from person.
Left behind in a hotel room.
Abandoned property in storage unit.
65
Abandoned Property Rationale
When a person abandons property, they abandon their expectation of privacy, and police can search and seize the item without a warrant.
66
Key to Abandoned Property Exception
The key is an act indicating a clear intention to give up the property.
67
Special Needs or Suspicionless Searches
```
Searches considered reasonable and therefor do not require a SW.
Border searches.
Airport searches.
Prison visitation.
Law enforcement employment.
```
68
Trash Searches
Allowed to search trash out at curb (not next to house).
| Can search as soon as it is placed where it is to be picked up.
69
Cascading Exceptions
Often one exception will lead to another.
| Example: Stop at car for traffic violation, see guns in plain view, can search passengers for more weapons.
70
Plain View v. Manufactured View
Seeing something plainly (in middle of room) v. moving something so that you can see it (opening a door).
71
Prison Searches
Inmates have no expectation of privacy in their persons in their persons, living space, effects, or communications.
Includes mail, phone calls, packages, visitors, etc. (except from attorney).
Can be searched at any time without reasonable suspicion.
72
Vehicle Searches
Viewed differently than searches of people or homes.
Subject to plain view, such as street, driveway, etc.
Passers-by can easily look through windows and see personal items.
Diminished expectation of privacy in vehicles.
73
Carroll Doctrine
Carroll v. United States (1925).
Also Automobile Exception.
A car located in a public place can be searched without a warrant if there is probable cause to believe it contains evidence of a crime.
74
Carroll v. United States (1925)
Car believed transporting illegal alcohol through undercover op was stopped en route and searched without a warrant.
Found 68 bottle of alcohol and subjects convicted, but appealed admission of liquor as evidence.
Court held evidence was admissible.
75
Carroll Doctrine: Requirements.
Must be probable cause.
| Vehicle must be readily mobile.
76
Carroll Doctrine: Scope
Police can search interior (under the seats, glove box), and can open items which might contain the items suspected (drugs, bottles, weapons, etc.).
77
United States v. Ross (1982)
Expanded scope of Carroll Doctrine to include trunk.
| Court reasoned scope should be equal for warrant and warrantless searches.
78
Carroll Doctrine: Application
Cars, boats, RVs, mobile homes (that are actually mobile), etc.
79
California v. Acevedo (1991)
Again expanded Carroll Doctrine.
If officers have probable cause, they may search the automobile and all containers in it where they believe contraband or evidence may be found.
80
Pretext Stops
When police become suspicious of a vehicle and/or its occupants, they often follow until they observe a traffic violation.
The lawful stop then triggers related exceptions to SW rules, often resulting in seizure of evidence.
81
Pretext Stops: Legality
Technique is legal as long as traffic stop is a legitimate violation (tail light out, expired tag, improper turn, ran stop sign, etc.).
82
Pretext Stops: Interdiction
OK Highway Patrol uses pretext stops to interdict drugs and drug currency on I-35 and I-40, resulting in millions of dollars worth of seizures each year.
83
Interdiction Protocol
OK Highway Patrol stops vehicle for traffic violation.
Driver placed in OHP vehicle and ticketed/warned.
Driver questioned about where, why, when, who.
Released "free to go" and starts back to vehicle.
En rout back to vehicle, trooper re-engages asks questions related to drugs and currency.
Asks for consent to search. (Yes = search, No = drug dog to gain probable cause).
84
Inventory Searches: Seized Items
When police take personal items into custody (including vehicles and items removed from arrestee) they are allowed to perform an inventory "search" to protect the valuables of owner and protect themselves from liability.
Must have policy regarding searching all such items/vehicles - cannot be selective.
If contraband found, it can be used as evidence.
85
Vehicle Seizures
Police can seize vehicle as contraband (stolen car) or as evidence (hit a person).
It can be searched pursuant to the inventory search exception.
86
Attaching GPS to Vehicle
Courts have held that attaching GPS is a search of an effect under 4A.
Slap-on GPS, however, are permitted.
87
Slap-on GPS Tracker
Acceptable due to diminished expectation of privacy in vehicles, but can only be monitored in public places (not a garage).
Often motion-activated, so no big deal.
88
Hard-wire GPS Tracker
Unacceptable as it taps into car's electrical system, as one has to intrude into the vehicle where there is a greater expectation of privacy.
89
Mobile Search Warrant Exceptions
Carroll Doctrine.
Pretext stops.
GPS tracking.
Police roadblocks.
90
Police Roadblocks
Courts have held that police roadblocks are provisionally constitutional.
They are for a legitimate law enforcement purpose.
They are conducted pursuant to a system which is random and not targeted.
Delay is not excessive.
91
Legitimate Purposes for Roadblocks
DUI checkpoints, kidnappings, license/registration, illegal aliens.
92
When is a Person Under Arrest?
A person is considered under arrest if a reasonable person would believe that they are not free to leave.
May be arrested but not booked and jailed at time of encounter.
A detention, although brief, is tantamount to arrest.
93
Justification for Arrest
Main requirement is probable cause that:
1) Crime has been committed.
2) Person being arrested committed that crime.
94
Making an Arrest
All arrests require probable cause.
Not every arrest is made pursuant to an arrest warrant.
Can arrest without warrant if reason for arrest amounts to probable cause and can be articulated.
Most arrests made without warrants.
95
Arrests for Minor Offenses
Minor offenders arrested/booked/jailed when offense require only small fine and no jail time.
Reasonable under 4A if done in good faith.
96
Arrests Without Warrants
Commonly made by officers and initial responders whp quickly arrive on scene when a crime is occurring or has just occurred.
97
Arrest With Warrants
More long-term and complex investigations often take time for probable cause to be met.
Investigators have time to seek arrest warrant from judge first.
98
Material Witness Warrant
Person may be arrested/detained on a material witness warrant if they are a key witness in a case and there is reason to believe they may flee to avoid testifying.
99
Material Witness Affidavit
Police must give specific reasons why the person is material to the case and set forth concerns that/why the person my soon disappear.
100
Search Incident to Arrest
When lawful arrest is made, officers may fully search arrestee.
Search to secure evidence or protect officers.
May search the person's body, items in their control, and immediate area within reason.
101
Probable Cause for Search v. Arrest Warrants
Arrest warrants leave out person needing to be there right now.
102
United States v Rabinowitz (1950)
Subject arrested at office pursuant to warrant.
| Searched entire office, including desk/filing cabinet/safe and found illegal forged stamps.
103
Rabinowitz Reasoning
Acceptable search.
Incident to arrest.
Room was public.
Room small and under arrestee's complete control.
Search did not extend beyond room used for crime.
Possession of materials expected to be found constituted a crime.
104
Chimel v. California (1969)
Chimel arrested for burglary in home pursuant to arrest warrant.
Police searched entire residence, not just room where Chimel was arrested.
105
Chimel Reasoning
Not acceptable, too broad.
Articulated 3-part rule.
1. Arrest must be lawful.
2. Must be contemporaneous to arrest (same time).
3. Limited to area under arrestee's immediate control, wingspan.
106
Protective Sweep
Cursory search of area where arrest occurred for people or other threats if there is reason to believe such threats are present.
Justification is officer safety.
However, evidence in plain view must be seized.
107
Mincey v. Arizona (1978)
Undercover officer shot when he entered Mincey's room to arrest him.
Several shots fired, so officers searched house for suspects or injured persons.
Scene secured and officers spent next 4 days searching.
Seized evidence found.
108
Mincey Reasoning
First search incident to arrest, but subsequent search was not because it was not contemporaneous.
Initial justification ceased after arrest and sweep, and police had time to get warrant.
109
Search Incident to Arrest: Movement
If arrestee moves freely and voluntarily from one place to another, then the area of search incident to arrest can be expanded.
Examples: Arrested naked/needs clothes, back to house/car for ID.
Must move voluntarily or for legitimate reason, not just to manufacture authority to search.
110
Search Incident to Arrest: Offenses
Less threat to safety.
| Searches not warranted when simply ticketing a motorist for a traffic violation.
111
Criminal Profiling v. Racial Profiling
Criminal profiling is ok, racial profiling is not.
112
Criminal Profiling
Certain characteristics of individuals likely to be associated with particular crimes.
Consider totality of circumstances, not single factors.
113
Racial Profiling
Police may not lawfully stop or detain a person based solely on race.
114
Stop and Frisk
```
Terry v. Ohio.
Frisk of outer clothing for weapons.
Frisk is less than search.
Stop is less than arrest.
Limited reason, limited response.
```
115
Terry v. Ohio (1968)
Officer noticed Terry and others casing store in high crime area.
Approached group and performed quick frisk before asking questions.
Found concealed weapons.
116
Terry v. Ohio: Decision
Whether search without probable cause for arrest is unreasonable under 4A.
Held reasonable, for an officer would be unduly burdened if not allowed to search for weapons before questioning.
Did not detain them long.
117
Stop v. Arrest
Reasonable Suspicion v. Probable Cause
118
Frisk v. Search
Reasonable Suspicion v. Probable Cause
119
Plain Feel Rule
During stop and frisk, police may seize non-threatening contraband as long as they stay within bounds of Terry.
Non-threatening object is immediately recognized as contraband, thus giving rise to probable cause for further search.
120
Terry and Vehicles
Courts extended Terry to vehicles.
| Car can be stopped if reasonable belief that car is involved in criminal activity (present or future).
121
Stop and Frisk: Reasoning
Privacy is balanced with need to investigate suspicious activity safely.
Helps prevents crime from happening.
122
Investigative Stops
4A applies to brief investigative stops of people and people in vehicles.
Totality of circumstances must be taken into account and must yield a particularized suspicion that the particular individual or vehicle being stopped is engaged in wrongdoing.
123
Exclusionary Rule
Prohibits use of evidence at trial which results from police violating the constitutional rights of the accused.
Court-made rule, not in Bill of Rights.
124
Exclusionary Rule: Purpose
Aimed at deterring intentional constitutional violations by police to to ensure due process.
125
Exclusionary Rule: Landmark Cases
Weeks v. United States: Federal.
| Mapp v. Ohio: State and Local.
126
Weeks v. United States (1914)
Subject under investigation for illegal lottery.
Police went to home, found key, and searched house.
Gave found evidence to Marshals, who also went over to search and took additional evidence.
Evidence used against subject during trial.
127
Weeks v. United States: Holding
Search was a violation, so evidence obtained by FEDERAL agents should have been excluded.
Reversed lower court decision.
128
Remedies for Bill of Rights Violations
Not seriously restricted until 1960's.
Previously Weeks only applied to federal cases.
Changed in Map v. Ohio, where it applied rule to states.
129
Mapp v. Ohio (1961)
Officers arrive at Mapp's house pursuant to info that person wanted for bombing questioning was hiding.
Mapp did not consent to search without warrant.
Officers arrive 3 hours later and wave a "warrant" in here face.
Mapp grabs it and puts it in shirt, where it was recovered by officer.
Search was conducted and found obscene materials, for which Mapp was later convicted.
130
Mapp v. Ohio: Holding
All evidence obtained in violation of constitution is inadmissable in STATE court.
Reversed lower court decision.
131
Exclusionary Rule: Judicial Misconduct or Mistake
Sometimes rights are violated by mistake and are not intentional, as when police are acting in good faith.
Mistakes can be made judicially.
These are not the fault of police, and evidence found is admissable.
132
Exclusionary Rule: Exceptions
Judicial Misconduct or Mistake.
| Standing to claim exclusionary rule.
133
Standing to Argue Issues, Rules, and Exceptions
Expectation of privacy is personal to owner of home or vehicle, and does not extend to guests.
134
Fruit of the Poisonous Tree Doctrine
If police find evidence by violating a person's rights, they cannot use that evidence or any evidence which they subsequently find as a result of the initial violation.
Two wrongs don't make a right.
135
Fruit of the Poisonous Tree Doctrine: Exceptions
Independent discovery.
| Independent source.
136
Independent Discovery Exception
If police would have found evidence anyway.
| Example: Illegal confession but searching area indicated anyway.
137
Independent Source Exception
If police would have found evidence as a result of an independent action anyway.
Example: Waiting for warrant but searched before they got it. Warrant issued, and even though initial search was illegal, they would have been able to search it legally anyway.
138
Use of Informants
Key area of review for agents.
Expected to find and develop informants.
Make deals and protect them by not making them testify.
139
Information from Informants in Affidavits
Information needs to be corroborated and substantiated independently of informant.
Informants must be good and reliable, put forth track record to convince judge.
140
Protection of Informant Identity
Do not have to identify informant in affidavit.
| Affidavits can be edited or sealed to help protect identity.
141
Handling Informants
Often payed with cash.
142
Types of Witnesses/Sources
Informants.
Cooperating witness.
Unknown source.
143
Informants
Identity is hidden so they can must used multiple times.
144
Cooperating Witness
```
Involved in case.
Usually couriers or lower-level players.
Make similar deals, but they testify in court.
Burned in testimony, one use only.
Often have to enter witness protection.
```
145
Unknown Sources
Not usually reliable.
| Can only use info if corroborated.
146
Informant Files
Records of who/what/when/why/how they have been used.
Tracks reliability, money paid, length of contract, etc.
Contains arrest records.
147
Aguilar-Spinelli Test
Two separate cases developed this rule.
1. Reliable/credible?
2. Articulate basis of info, how do they know what they know.
Works on informants and cooperating witnesses, not on unknown sources.
148
Aguilar-Spinelli Test: Abandonment
Abandoned in Illinois v. Gates.
| Replaced with totality of circumstances.
149
Testing Informants
Polygraph tests.
Don't know other informants, cooperating witnesses, undercover officers, etc.
Vetting by placing multiple agents to verify truth of information.
