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Criminal Procedure > Fourth Amendment > Flashcards

Fourth Amendment Flashcards

0
Q

Custody

A

in the presence of law enforcement
not free to leave
deprived of his freedom of action in a significant way.

Orozco v Texas

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1
Q

Arrest and Detentions - General Principles

A

Warrants not required to arrest in public place

US v Watson
Non-Emergency Arrests in a home requires warrant

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2
Q

Arrest

A

taken into custody
purpose of commencing a criminal action,
arrest occurred.
Dunaway v NY

More than stop and frisk is required.
Brief detentions by police are permissible for
purpose of questioning,
without probable cause.

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3
Q

Approach to Criminal Procedure Questions

A
  1. Was there government Action?
  2. If so, did it trigger a constitutional right?
  3. If so, did the government violate a constitutional right?
  4. Is your D entitled to the remedy of exclusion?
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4
Q

Rights of the Constitution incorporation

A

incorporated to the states through the due process clause of the 14th Amendment.

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5
Q

4th Amendment Applies to

A

Government Action.
government obtains evidence from PRIVATE party
and seeks to introduce,
4th amendment not triggered.

Only where that party is acting at the direction of the government or pursuant to an official policy. Then the 4th Amendment is triggered and the search must be reasonable.

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6
Q

When is the 4th Amendment Reasonableness requirement triggered?

A

Any government seizure of person or property

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7
Q

Terry Stop

A

Brief investigatory seizure.
Police require interaction.
Triggers 4th A requirement of reasonableness.

short of arrest.
Difference is in duration and purpose.

purpose - investigate ‘REASONABLE SUSPICION’ crime has occurred or is about to.

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8
Q

Permissible Duration of a Terry Stop

A

time necessary to confirm or deny reasonable suspicion.

suspicion confirmed = probable cause = arrest.

denied = seizure must terminate.

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9
Q

For Property to be seized - definition

A

police action results in a meaningful interference with a possessory interest.

police take property, it is seized.

police place something on property & not interfere with use of the property - not seized.

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10
Q

Search Defined

A

government intrusion into reasonable expectation of privacy (REP)
or a trespass of the suspects person, home, papers or effects
for purpose of gathering information.

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11
Q

When the government interferes with a reasonable expectation of privacy a person may assert his 4th Amendment rights.

To do so the individual must…

A
  1. Manifest a subjective expectation of privacy - making effort to shield the place, thing, or activity from the public.
  2. expectation is objectively reasonable? An expectation society recognizes.

no REP when objects are held out to the public.

A person knowingly exposes something to the public the police seeing, hearing, or smelling it is not a search.

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12
Q

use of animals; commonly available equipment

enhance natural senses.

A

NOT a search

so long as what they see, hear, or smell is detected without intruding on a REP

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13
Q

List 10 items where no REP

knowingly exposed to the public

A
  1. handwriting exemplars
  2. voice exemplars
  3. bank records
  4. pen registers - dialed phone numbers collected at a public phone
  5. header information on an email, but not content.
  6. private conversations between 2 parties where one party allows it to be recorded with his consent.
  7. open fields - unoccupied areas beyond the curtilage of the home.
  8. naked eye observations from an aircraft
  9. discarded property
    10 ariel photography even with the use of high powered scopes
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14
Q

Burden on D if Police obtain a warrant

A

creates presumption of reasonableness.

D bears BoP to show

  1. warrant not based on probable cause
  2. magistrate not neutral or detached.
  3. warrant failed to describe with particularity objects to be seized or place searched.
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15
Q

Admissibility of evidence obtained by INVALID warrant

A

admissible pursuant to “good faith” exception to the exclusionary rule.

Must be additional determination that police acted unreasonably in reliance on the warrant.

16
Q

Search without a warrant presumptions

A

Presumptively unreasonable.

Government has BoP Seizure fell w/i established exception to warrant requirement.

17
Q

Procedure for issuing a warrant

A 
issued by neutral detached magistrate
based on probable cause
describes with particularity 
items to be seized or 
place to be searched.
18
Q

Information (affidavit) presented to a magistrate must

A

Provide relevant facts which conclude
It is MORE PROBABLE THAN NOT
person committed a crime or
evidence is at location.

Information must not be stale.

19
Q

Warrant Execution

A

knock and announce prior to entry

not required when 
REASONABLE SUSPICION doing so would 
ENDANGER POLICE or 
lead to the DESTRUCTION of EVIDENCE or 
FLIGHT OF THE SUSPECT
20
Q

Violation of the KNOCK and ANNOUNCE rule

A

violates 4th Amendment but

does NOT trigger the exclusionary rule.

21
Q

Probable Cause - Defined

A

Facts and circumstances warranting
reasonable persons to conclude
person committed a crime to support arrest
or items will be found in a particular location.

This is an objective standard
subjective intentions of the police officer play no role

22
Q

When Probable Cause is ALWAYS required

A

any full scale intrusion or a
full blown evidentiary search or
an arrest.

23
Q

How probable cause is often established

A

Police observation
eyewitness account
forensic evidence
suspects admissions or actions

24
Q

Probable cause established by an informants tip

Test applied

A

Totality of the Circumstances Test
assess informants reliability and establish probable cause

  1. Veracity of the informant - does he have a track record?
  2. Basis of knowledge - how does informant know suspects activities.
  3. Police corroborates facts and establish accuracy of prediction.

The Test must indicate information provided is predictive information only a person with inside access would know.

25
Q

Reasonable Suspicion - Defined

A

belief based on articulable information
more than a hunch
used by a reasonable person or police officer
indicating suspect has or will engage in criminal activity.

Enables Officer to to a Terry Stop or Terry Frisk ONLY.

26
Q

A police officer’s subjective suspicion is sufficient to establish…

A

NOTHING

not objectively reasonable
insufficient to do even cursory search or seizure.

reasonable suspicion must have
a VERIFIABLE OBJECTIVE FACT to support

27
Q

Arrest made in Public requirements

A

No warrant so long as probable cause exists.

28
Q

Arresting an individual in their home

A

Requires warrant
consent to enter or
exigent circumstances

29
Q

Exigent Circumstances justifying warrantless entry to execute arrest

A
  1. Arrest outside home thwarted by retreat into home.
  2. delay will allow suspect to evade arrest or destroy evidence.
  3. hot pursuit and has probable cause
  4. officer did not create exigent circumstances to avoid obtaining warrant.
30
Q

Terry Stop Requirements

A

Reasonable suspicion crime is afoot

justifies a brief investigation or seizure.

31
Q

Reasonable suspicion is established by

A

Police observation
eyewitness reports
flight from police in a high crime area
informant tip + police corroborating tip

32
Q

informant tip and establishing reasonable suspicion

A

Reasonable suspicion is established by
verifying informants prediction even without indication of insider access.

tip providing nothing more than existing information,
will not establish reasonable suspicion

33
Q

permissible scope of a Terry Stop

A

time necessary confirm or deny suspicions
while acting with due diligence

officer can ask suspects name during Terry stop
so long request has immediate relation
to the purpose of the stop.

improper subjective basis stop - not illegal if stop supported
objectively reasonable belief
suspect has engaged in or
was about to engage in criminal conduct.

34
Q

Seizure of Property Requirements

A

warrant based on probable or property in plain view.

35
Q

Plain View Requirements

A

lawful vantage point to observe.
And
lawful access to the point of seizure.

doctrine is an exception to the warrant requirement
NEVER justifies a WARRANTLESS SEARCH for contraband

36
Q

Seizure of Person

A 
Government action
reasonable person 
not feel free to leave
or terminate police encounter
Seizure occurred and 4th amendment triggered.
36
Q

How can a search or seizure comply with the 4th Amendment

A

It must be reasonable

Criminal Procedure (5 decks)

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