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Crim/pro > Fourth Amendment > Flashcards

Fourth Amendment Flashcards

1
Q

What does the Fourth Amendment protect citizens from?

A

Unreasonable searches and seizures

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2
Q

When does a seizure occur?

A

When, under the totality of circumstances, a RP would not feel free to decline officer’s request or to terminate the encounter

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3
Q

An arrest must be based on…

A

Probable cause

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4
Q

What is probable cause?

A

trustworthy facts or knowledge sufficient for RP to believe suspect committed or is committing crime

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5
Q

When is an arrest W required?

A

NOT for arresting someone in public place

But for non-emergency arrest of an individual in his home

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6
Q

What do police need to arrest you and compel you to come to the police station either for finger printing or interrogation (station house detention)?

A

probable cause

but don’t need PC to ASK to come to station

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7
Q

Another word for Terry stop?

A

Investigatory detentions

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8
Q

To briefly detain a person, what must police have?

A
  • reasonable suspicion of
  • supported by articulable facts
  • of criminal activity

(hunch is never enough)

PC not necessary

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9
Q

Whether the police have reasonable suspicion depends on….

A

the totality of circumstances

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10
Q

When may police stop an automobile?

A

when they have at least reasonable suspicion that the law has been violated

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11
Q

Who has standing to sue for wrongful SEIZURE when car is STOPPED (but not for SEARCH)?

A

driver AND passengers

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12
Q

When is reasonable suspicion NOT needed to stop a car? (the exception)

A

checkpoint roadblocks:

  • OK so long as neutrally applied (stop every car or every 4th car)
  • OK for DUI (but not to check for only drugs) and border crossing
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13
Q

Traffic stops and police dogs: during routine traffic stops, is a sniff by dog a search?

A

No, so long as police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries

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14
Q

Traffic stop and police dogs: What if during a traffic stop, dog alerts to presence of drugs?

A

Can form basis for PC for a search

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15
Q

What’s needed to search?

A

PC

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16
Q

Can police use drug sniffing dog directly outside home of suspected drug dealer?

A

Not w/o PC

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17
Q

Model for search & seizure Q (5 steps)

A

1) gov’t conduct?
2) REP (as to place searched or item seized)? (this gives you STANDING)
3) police have valid search W?
4) if W invalid, officer have good faith defense to save defective search W?
5) if W invalid AND no good faith defense OR police never had any W at all, EXCEPTIONS to W req?

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18
Q

STEP 1: Gov’t conduct: Whose actions count?

A
  • publicly paid police- on OR off duty
  • any private individual acting at direction of public police
  • NOT privately paid police unless deputized w/ power to arrest (e.g. of privately paid police: store security guards, subdivision police, campus police)
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19
Q

STEP 2: REP (standing): automatic categories of standing

A

1) OWN premises searched
2) LIVE on premises searched, regardless of ownership interest (e.g. grandchild living at gparents’ home)

**3) OVERNIGHT GUESTS of owner of place searched

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20
Q

STEP 2: REP (standing): important “sometimes” category

A

OWN PROPERTY seized (e.g. backpack, purse)

standing ONLY IF D has REP in item or area searched (e.g. you don’t have REP in another person’s person)

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21
Q

STEP 2: REP (standing): no standing categories (5)

A

No REP and therefore no standing for anything you HOLD OUT TO THE PUBLIC (seizure of these things implicates no right of privacy)

1) sound of VOICE
2) style of HANDWRITING
3) PAINT on outside of car
4) ACCOUNT RECORDS held by bank
5) LOCATION OF YOUR CAR on public street or in driveway (police CAN tail your car)
BUT installation of GPS device on suspect’s car is a search, so need PC and W
6) anything that can be seen across the OPEN FIELDS (anything NOT curtilage, like rural property)
7) anything that can be seen from flying over in PUBLIC AIRSPACE
8) ODORS emanating from luggage or car
9) GARBAGE set out on CURB for collection
(leaning against house - REP)

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22
Q

STEP 3: Police have VALID search W? 2 reqs

A

PC and particularity

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23
Q

STEP 3: Police have VALID search W? PC standard

A

fair probability that contraband or evidence of crime will be found in area searched

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24
Q

STEP 3: Police have VALID search W? Particularity standard

A

W must state w/ particularity

  • the place to be searched AND
  • the things to be seized
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25
Q

STEP 3: Police have VALID search W? Warrants and use of informants: If officer’s affidavit or PC is based on informant info, its sufficiency is determined by…

And what are relevant factors?

A

the totality of circumstances

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26
Q

STEP 3: Police have VALID search W? Warrants and use of informants: factors relevant to determining sufficiency

A

informant’s credibility AND basis of knowledge

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27
Q

STEP 3: Police have VALID search W? Warrants and use of informants: Can valid W be based on anonymous informant’s tip?

A

yes, IN PART, but can’t be ONLY based on the anonymous tip

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28
Q

Execution of search W: general rule

A

“Knock and announce”: knock, announce purpose, wait reasonable time for admittance

29
Q

Execution of search W: exception to general rule (when “no knock” entry permitted)

A

Exigent circumstances:

  • knocking and announcing would be dangerous, futile, or inhibit investigation
  • biggest fear of INHIBITING investigation: destruction of evidence
30
Q

Execution of search W: Does exclusionary rule apply to violation of “knock and announce” rule?

A

No

31
Q

STEP 4: If W invalid, officer have GOOD FAITH DEFENSE that saves defective search W? General rule

A

Officer’s good faith reliance on search W overcomes defects w/ the PC or particularity reqs

32
Q

STEP 4: If W invalid, officer have GOOD FAITH DEFENSE that saves defective search W? Exceptions to general rule (4)

A

Four exceptions to good faith reliance on defective search W:

1) affidavit underlying search W is so LACKING IN PC that no reasonable police officer would have relied on it
2) affidavit underlying search W so LACKING IN PARTICULARITY that no reasonable police officer would have relied on it
3) police officer or prosecutor LIED TO or MISLED the magistrate when seeking the W
4) if the MAGISTRATE is BIASED, and therefore has wholly abandoned his or her NEUTRALITY

33
Q

STEP 5: If W is invalid and can’t be saved by good faith defense OR if police never had any W at all…

A

EXCEPTIONS to W req?

34
Q

STEP 5: Exceptions to W req

A

1) Search incident to (constitutional) arrest
2) Automobile exception
3) Plain view
4) Consent
5) Stop & frisk
6) Evanescent Evidence
7) Hot pursuit
8) Special needs- inventory, public school

35
Q

Exception to W req: Search incident to arrest (SIA): search must be…

A

lawful

if arrest unlawful, search unlawful

36
Q

Exception to W req: SIA: time/place of search

A

arrest and search must be contemporaneous in time and place

37
Q

Exception to W req: SIA: what can be searched?

A

the person and the areas within the person’s wingspan/grab area

where person could grab weapon or destroy evidence

38
Q

Exception to W req: SIA & automobiles: When may police search interior (including passenger compartment, NOT trunk) of auto incident to arrest?

A

Arrestee is UNSECURED and still may gain access to interior of vehicle

OR

Police reasonably believe EVIDENCE of offense for which person is arrested may be found in vehicle

39
Q

Exception to W req: SIA & automobiles: Exception to general rule, recognized in most states

A

Community caretaker: justifies W’less search if officer faces an emergency that threatens the health or safety of an individual or the public

40
Q

Exception to W req: Automobile exception: In order for police to search anything or anybody and fall under this exception…

A

they must have PC to believe vehicle contains fruits, instrumentalities, evidence of crime

41
Q

Exception to W req: Automobile exception: When can police search entire car?

A

ONLY IF, before searching anything or anybody, they have PC

42
Q

Exception to W req: Automobile exception: What is included in the “entire car”?

A

Entire interior compartment and trunk (unlike SIA where trunk not included)

Can also open any PACKAGE, LUGGAGE, CONTAINER which could reasonably contain the item they had PC to look for whether or not owned by passenger or driver

43
Q

Exception to W req: Automobile exception: What if police only have PC to search a container in the car?

A

May only search the container, not the entire car

44
Q

Exception to W req: Automobile exception: When must PC necessary to justify Wless search of auto under this exception arise?

A

Can arise AFTER car stopped, but must arise BEFORE anything or anyone searched

45
Q

Exception to W req: Plain view (2 reqs)

A

police must be LEGITIMATELY PRESENT at the location where he or she does the viewing of the item seized

it must be IMMEDIATELY APPARENT that item is contraband or a fruit of crime

46
Q

Exception to W req: Consent: to be valid, must be…

A

voluntary (police saying they have W -> not voluntary)

47
Q

Exception to W req: Consent: 3rd party consent rule

A

where 2 or more ppl have an equal right to use a piece of property,

EITHER can consent to its W’less search.

However, if both ppl are PRESENT and one consents to search and other does not,

one who does NOT controls.

48
Q

Exception to W req: Stop and frisk (Terry stop): What is it & for what purpose?

A

brief detention for purpose of investigating suspicious conduct

49
Q

Exception to W req: Stop and Frisk: legal standard for stopping

A
  • reasonable suspicion of criminal activity
  • supported by articulable facts

(hunch is never enough)

PC not necessary

50
Q

Exception for W req: Stop and Frisk: What is a “frisk”? And when can police do it?

A

If reasonably believes armed and presently dangerous

Pat down of outer clothing and body to check for weapons or items immediately recognizable as contraband

51
Q

Exception to W req: Stop and Frisk: When police frisk and find something, when is it admissible?

A

when stop was reasonable (reasonably believed armed and presently dangerous)

if reach inside and pull something out, admissible if officer reasonably believes by PLAIN FEEL that was weapon or contraband

52
Q

Exception to W req: Stop and Frisk: If PC arises during investigatory stop, detention can…

A

become arrest and can conduct full search incident to arrest

53
Q

Exception to W req: Stop and Frisk: Auto stops: If vehicle properly stopped for traffic violation and officer reasonably believe driver or passenger may be armed and dangerous, officer may…

A

conduct frisk of suspected person

search vehicle- LIMITED to areas in which weapon may be placed (passenger compartment)

54
Q

Exception to W req: Evanescent evidence - what is it?

A

Evidence that might DISAPPEAR QUICKLY if police took time to get W

ex. police can scrape suspect’s fingernails w/o getting W b/c if took time to get W D might go wash hands

55
Q

Exception to W req: Evanescent evidence - blood sample

A

need W before taking blood sample for DUI arrest (if practical to do so)

no longer per se exigency

56
Q

Exception to W req: Hot pursuit of fleeing felon - rule of thumb

A

if police are NOT within 15 mins behind fleeing felon, it is NOT a valid hot pursuit exception

57
Q

Exception to W req: Hot pursuit of fleeing felon - where can police enter?

A

Enter anyone’s home w/o W

any evidence in plain view is admissible

58
Q

Exception to W req: Inventory searches: Before incarceration of arrestee, police may search…

A

1) the arrestee’s personal belongings, and/or

2) arrestee’s entire vehicle (including closed containers in car)

59
Q

Exception to W req: Public school searches: Which school children can be randomly drug tested?

A

public school children engaged in extracurricular activities (doesn’t have to be sports; covers school dances)

60
Q

Exception to W req: Public school searches: What can be searched? And for what purpose?

A

public school children’s effects, such as purses and/or backpacks

purpose: to investigate violations of school rules

61
Q

Exception to W req: Public school searches: When is search reasonable?

A

1) offers a MODERATE CHANCE of finding evidence of wrongdoing
2) MEASURES adopted to carry out search are REASONABLY RELATED to OBJECTIVES of search
3) search is not excessively intrusive in light of age and sex of student and nature of infraction

62
Q

What’s required to wiretap and eavesdrop?

A

warrant (it constitutes a search)

63
Q

What’s required for a W to wiretap?

A

1) PC
2) named suspected persons in convo
3) describe w/ particularity convos that can be overheard
4) wiretap limited to short time pd
5) wiretap terminated when desired info obtained
6) return to ct showing convos intercepted

64
Q

When is a W NOT necessary to eavesdrop?

A

UNRELIABLE EAR- everybody assumes risk that person w/ whom he is speaking will either CONSENT to gov’t MONITORING convo OR will be WIRED, and therefore has no 4th A objection on basis that it was a W-less search

UNINVITED EAR- speaker has no 4A right if she makes no attempt to KEEP THE CONVO PRIVATE

65
Q

Who has standing for unlawful search of car?

A

driver but not passenger; passenger has no REP in other’s car

66
Q

If police have arrest W for someone hiding in someone else’s home, what must police get?

A

Search W

67
Q

Can anonymous tip be enough for reasonable suspicion for stop and frisk?

A

yes, if RELIABLE enough to make suspicion reasonable

68
Q

Curtilage definition

A

immediate area surrounding home, like shed

have REP in this

69
Q

Searches by school officials: what grounds are necessary for a search?

A

REASONABLE grounds

not W or PC

Crim/pro (20 decks)

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