Final Prep Flashcards
What is a 4th Amendment search
There are two prongs:
* Subjective expectation of privacy
* One society is prepared to accept as reasonable
3rd Party Doctrine
Information that is
* knowingly
* voluntarily
disclosed to a 3rd party, there is no reasonable expectation of privacy
Probable Cause Generally
In order for a search to be reasonable, it ust be supported by a warrant and based on probable cause
SCOTUS Definition of Probable Cause
Probable Cause exists if facts and cirxumstances within the officer’s knowleddge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched
Evaluating information from a tipster
The Katz era was about two prongs, the veracity of information and the basis of knowledge. Both prongs were required for a finding of probable cause. SCOTUS overruled that, and replaced it with the totality of the circumstances test. Two two prongs from Katz are still part of the analysis, but they are not as dispositive as they were under Katz
Totality of Circumstances for PC factors
- Source of the information
* Reliability
* Motive
* Ability to observe - Method of obtaining the information
* Eyewitness
* Rumor
* Hearsay - Quantum of information
- Quality of information
- Timeliness of information
- Other
Warrant Requirement Generally
Before a search under the 4th Amendment can be reasonable, it must be preceeded by a warrant
Public Arrest Exception to the warrant requirement
If an officer has probable cause to believe that individual has committed even a very minor offense in his presence, he may, without violating the 4th Amendmen, arrest the offender
What are the two considerations allowing for a search incident to arrest?
- Ensuring officer safety by searching for weapons
- Ensuring the suspect is not in possession of evidence that can later be destroyed
During a search incident to arrest, where can the officers look?
- The suspect
- The area in the suspect’s immediate control
Is there a time limit for search incident to arrest?
Not one clearly laid out by SCOTUS, but it must not be remote in time or place
Search incident to arrest involving cars
Gant establishes that the search incident to arrest rationale allows a warrantless search of the passenger compartment only if one of two thigs is true:
1. the reesetee has access to the passenger compartment at the momemt of the search
2. the police reasonably believe that the passenger compartment may contain evidence of the offense for which the arrest is being made
Important distinction for type of arrest for search incident to arrest cases
Traffic violation vs something like a drug offense.
For a traffic violation, there is on reason for the police to believe there is evidence of the crime in the passenger compartment of the car, therefore police may rarely be able to search the passenger compartment of a vehicle during a traffic violation arrest.
Contrast this with a drug offence, where police may reasonably. believe they will find evidence related to the crime, therefore they are more likely to be able to search the passenger compartment of the car.
Understand how the search incident to arrest interacts with other search doctrines, particularly Michigan v. Long, and US v. Ross
In Michigan v. Long, the police asked the suspect to step out of the vehicle, and were interrogating him, but had not arrested him. If the police believe the suspect may be dangerous and might gain access to a weapon after the interrogation upon returning to their vehicle, the police may conduct a brief protective search of the passneger compartment of the vehicle, under the stop and frisk doctrine. Because there is no arrest, this scenarion does not fall into the search incident to arrest or under Gant
Under Ross, the police may search any party of the vehicle after making a proper stop if they have probable cause to believe that the vehicle contains contraband or evidence of a crime, regardless of if the suspect is arrested or not
What are the exceptions to the warrant requirement?
- Public arrest
- Search incident to arrest
- Exigent circumstances
- Mobility exception
- Inventory search
- Search based on consent
- Plain view doctrine
Search incident to arrest generally
When the police are making a valid arrest, they can search the area within the immediate control of the arrestee. Rationale is to search for weapons for officer safety, and to prevent the concealment or destruction of any evidence
Search incident to arrest involving vehicles
allows a warrantless search of the passenger compartment when:
1. the arrestee has access to the passenger compartment at the moment of the search (very rare)
2. if the police reasonably believe that the passenger compartment may contain evidence of the offense for which the arrest is being made
Rememvber one key thing when considering search incident to arrest
There must be a valid arrest. If there is not a valid arrest, then other exceptions will apply
Is there a time limit on search incident to arrest?
Not in so many words, but yes, police cannot return to the scene at a later time to do the serach, for example
Search incident to arrest: Edwards
Once the defendant is lawfylly arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfylly be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative proceedings
Exigent Circumstances
Including
* preventing the imminent destruction of evidence
* preventing harm to persons
* searching in hot pursuit for a suspect
What is the rationale/exception for testing blood alchol content?
Either a search incident to arrest, if there is a valid arrest, or an exigent circumstance for the destruction of evidence in the rapidly decreasing BAC
What is the scope of the hot pursuit exigent circumstance?
If police are in pursuit of a suspect, and he enters a residence, the police may enter the residence and search for weapons which the suspect may use. May also sieze evidence of other crimes, so long as it is in a place where the police were reasonably searching for the suspect or his weapons
Plain view doctrine
Requirements:
1. Officers must not have violated the Fourth Amendment in arriving at the place from which teh items are plainly viewed
2. The incriminating nature of the item must be immediately apparent
3. The officers must have a lawful right of access to the object itself
Key things to remember with plain view
- Police must be lawfully on the premises
- Plain view alone does not permit entrance into a dwelling, if drugs are seen through a window, for example
Automobile Exception generally
a police officer may search a motor vehicle without first getting a search warrant, as long as she has probable cause to beliece that evidence or contraband is located in the vehicle
What are the two rationales for the automobile exception?
- Ready mobility
- Lesser expectation of privacy
Automobile exception examples
- Officer looking through the window of a car sees contraband in plain view, the officer is entitled to open the car door and seize and inspect the item.
- Probable cause to open a car’s locked trunk, officer is entitled to seize additional unexpected items of evidence
- When arrest a driver for selling drugs out of his car, police can open the trunk, open a closed paper bag they find there, and seize any contraband or evidence of crime they find
- Arrest driver of a getaway car after a robbery and seize the car and drive it to the police station, they can immediatlely search the car
- When DEA agents enter and search a motor home whose windows are covered, the search is proper even though the vehicle is capable of serving as a residence
Automobile: search at station after arrest when car is driven to station
Allowed
Automobile: search at place where vehicle is stopped
Allowed
Automobile: search of car parked on property
- In open field: allowed
- In curtilage: not allowed
Automobile: minor violation as pretext
Police have suspicion, but not enough for probable cause. They see the suspect perform a minor traffic violation. They stop the car. If, during the traffic stop, they have probable cause to believe contraband is inside,
Allowed
Automobile: closed containers
as thorough as a search authorized by a warrant issued by a magistrate. Includes all receptacles and packages that could possibly contain the object of the search
Allowed
Automobile: Passenger container
Allowed, even if the police have no grounds whatever to suspect the passenger of any wrongdoing
Automobile: container only
If police see suspect with a bag similar to one they had seen with drugs in it. Suspect put the bag in the trunk of his car and drove away. Police stopped suspect, and looked in his trunk, even though they had no probable cause fo the car itself, only the bag
Allowed
Automobile: impounded car
Inventory search
Allowed
Automobile: passenger person
Not allowed
No matter what has happened, the police may search a passenger only if
1. probable cause to believe that the passenger possesses evidence of a crime
2. Probable cause to arrest the passenger
What is the standard for evaluating consent
Totality of the circumstances
Issue is whether the consent was voluntary, and as long as it is not “the product of duress or coercion, express or implied”
What if the person does not know they can refuse a request to search?
This is only one factor to consider under the totality of the circumstances, and is not dispositive
When asking for consent, do police have to inform the person they can refuse?
No
How does probable cause relate to consent to searches?
There is a good argument that consent should be tested more stringently when there is no probable cause
Third party consent from someone with joint access when D is absent
Consent is valid, if the third party has
1. actual joint authority
2. is reasonably believed by the police to have joint authority
Third party consent from someone with joint access when D is present and refusing consent
The third party consent is not enough to allow police to search
Spouse as third party consent
Generally will be allowed, even over the other spouse’s objections. May be limited by factors such as consent to search the other’s property, or to search an area the third party does not have access to
But if the police know the other spouse is refusing to consent, the consent will not be valid
What is the standard for a Terry stop?
Reasonable suspicion, based on objective fac ts, that the individual is involved in criminal activity
What are some factors to be considered when determining if an interaction is a stop?
- Threatening presence of several officers
- Display of a weapon
- physical touching of hte person
- use of language or tone of voice indicating that compliance with the officer’s request might be compelled
When is a pursuit considered a seizure?
- When the ssupect stops in response to the chase or to police orders
- a reasonable person in the suspect’s position would feel they are not free to leave
How long can a terry stop be?
must not be longer than the circumstances which justified it require
What is the scope of a terry stop?
No more intrusive than needed
What is the scope if a bag is seized because of reasonable suspicion that the bag contains drugs?
Must be limited to a brief investigation of the circumstances that aroused the suspiction
If a person fits the description of a drug courier, is this enough for a terry stop?
Yes
What is the standard for judging reasonable suspicion for a terry stop from a tip?
totality of the circumstances, with focus on veracity, reliability, and bawis of knowledge of the informant
Is an anonymous tip that someone has a gun enough for a terry stop?
No, there must also be a sufficient indica of reliability
During a lawful arrest, can police search a premises when they have reasonable suspicion that other people who could pose a threat could be hiding?
Yes, under terry for the same reasoning, that police safety outweighs the private interest at that time
During a Terry stop, can police also seize contraband?
yes, but only if the item was immediately apparent
Can an officer search the passenger compartment of a vehicle during a terry stop?
Yes, based on specific and articulable facts and the rational inferences drawn from those facts, the officer believes the suspect is dangerous and may gain immediate control of a weapon
Can an officer prolong a routine traffic stop for a drug sniffing dog?
No
Terry general extensions
- Suspicion to support a stop need not be based on the officer’s own observations
- A suspicion of wrongdoing entitles the officer to stop a vehicle, not just conduct an on-the-street stop of a pedestrian
- The officer may, pursuant to a vehicle stop, search the car’s passenger compartment
- The stop may be accompanied by a temporary seizure of personal effects, such as baggage
- A stop is not unreasonable merely because it is 27 hours
Special needs, checkpoints
Officer scan set up checkpoints if the state interest outweighs the intrusion into people’s privacy interests and the checkpoint is proven to be an effective means of achieving the goal
Also must be a predeterined number of vehicles to stop and check, cannot be random
Checkpoints in high crime areas to check for crime are no good
Special Needs: taking DNA without probable cause
Is allowable, when special law enforcement needs render probable cause and warrant requirements impractible
Think railway employees being drug and alcohol tested after a crash
Do strip searches at a jail require probable cause?
No, for the purpose of the health and safety of the inmates
When can a school official search a student?
if there are reasonable grounds for suspecting that the search will result in evidence of the student’s violation of law or school rules
When does Miranda apply
When an individual is
* taken into custody or otherwise deprived of his freedoms by the authorieis in any significant way
* subjected to questioning
This is an objective reasonable suspect test, and looks to if a reasonable person in the suspect’s position would believe that he was or was not in custody at that moment
What are the Miranda warnings
- right to remain silent
- that anything he says can be used against him in a court of law
- that he as the right to the presence of an attorney
- if he cannot afford an attorney, one will be appointed for him prior to any questioning
If a suspect waives his Miranda rights, can he later invoke them during questioning?
Yes, Miranda can be exercised at any time, and when it is exercised (silence and attorney) the interrogation must cease
What is a Miranda waiver
Knowingly and intelligently made. Silence may not be taken as a waiver
Is the Miranda right to an attorney a right to consult an attorney, or to have an attorney present during questioning?
To have an attorney during questioning
What is the rationale behind Miranda
5th Amendment, and that custodial interrogation is inherently coercive
What are factors to consier when determining if a stop is a Miranda custodial interrogation?
- Location of the questioning
- Degree of pressure applied
- Duration and manner of the interrogation
- Subject’s freedom to leave
- Subject’s awareness of ongoing investigation
- Objective circumstances
- Voluntariness
What constitutes interrogation?
whenever a person is in custody is subjected to either express questioning or its functional equivalent. The interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response
When is Miranda right to remain silent waived?
Knowing and voluntary
the relinquishment of the right must have been voluntary in teh sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it
Regarding Miranda waiving, what if the suspect only answers questions?
Only answering questions, with nothing more, is not enough to be a Miranda waiver. There must also be something to show the voluntary element and the knowledge element
Can Miranda waivers be express?
Yes, either signing a paper or orally waiving the right
Can Miranda waivers be implied?
Yes
If the suspect understands his rights and continues to answer questions, his waiver can be implied.
Also if the suspect is familiar with the criminal justice system, or if the suspect answers some questions but refuses to answer others
Will a waiver of Miranda rights be valid if the suspect has an attorney, who is trying to contact him, and the police know this?
yes, the waiver is still valid
What is the standard for an invocation of Miranda rights?
clear and unequivocal
What if a suspect invokes his Miranda right to counsel?
Then the police may not question him without counsel present until 14 days have passed from being released from Miranda custody
What if a suspect invokes his Miranda right to silence?
Three pronged test
1. The police must immediately cease questioning
2. The gap between questionings must represent a significant passage of time (cooling off period)
3. Prior to second questioning, the police must provide Miranda warnings again
The second questioning can be initiated by the police, so long as the prongs have been met
What is the 6th Amendment right to counsel?
after indictment, a suspect has an absolute right to have counsel present at any pretrial conftontation procedure
Can a 6th Amendment right to counsel be waived?
Yes, but this is a very stringent test. It must be an intelligent waiver, and the prosecution has a heavy burden to show an express waiver
Who does, and does not, have standing for the exclusionary rule?
Only someone whos rights have been violated can invoke the exclusionary rule. One cannot invoke the exclusionary rule if someone else’s rights were violated which lead to evidence against them
What are the main exceptions to the exclusionary rule?
- Independend Source
- Inevitable Discovery
- Good Faith Exception
What are the prongs of the independent source Exception?
- Police must be on the premises illegally
- There must be probable cause for a search warrant at the moment of entry
- The police must show that they would probably have applied for a search warrant eventually
