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CRIMINAL PROCEDURE > Fourth Amendment > Flashcards

Fourth Amendment Flashcards

1
Q

Seizure

A

Under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer’s requests of otherwise terminate the encounter

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2
Q

Arrest

A

Occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation.

Note:

  • Must be based on probable cause
  • Warrant not required for arrest in public places
  • Warrant required for non-emergency arrest of person in their home
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3
Q

Probable Cause

A

trustworthy facts or knowledge sufficient for a reasonable person to believe that th esuspect has committed or is committing a crime.

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4
Q

When is warrant for arrest required and not required for an arrest?

A

Warrant is required for a non-emergency arrest of a person within their home

A warrant is not required for arrest of a person in a public place

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5
Q

Investigatory Detentions Requirements

STOP and FRISK requirements

A

Must have:
STOP (not an arrest): Reasonable suspicion of criminal activity or involvement in a completed crime,
Supported by articulable facts
FRISK:
reasonable suspicion that the detainee is armed and dangerous (may then frisk for weapons)

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6
Q

Duration and Scope of Investigatory Detentions

A

Police must act in:
Diligent and reasonable manner in confirming or dispelling their suspicions
Note:
-May stop and ask name
-Brief property seizures are valid if based on reasonable suspicion

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7
Q

Automobile Stops

A

Generally, police may not stop care unless reasonable suspicion that a law has been violated.

But, special law enforcement needs are involved roadblocks/checkpoints are valid when:

  1. Stop cars on the basis of some neutral, articulable standard (every car)
  2. be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
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8
Q

Search Analysis

A
  1. Is there Governmental Conduct
  2. Does D have a reasonable expectation of privacy (in the item or the area searched) (standing)?
    - owned
    - live on premises searched
    - overnight guests
    - NO expectation of privacy in things held out to the public
  3. Did the police have a valid search warrant?
    - must have probable cause and be set forth with particularity
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9
Q

NO EXPECTATION OF PRIVACY

A
  • Sound of one’s voice
  • One’s handwriting
  • Paint on the outside of one’s vehicle
  • Account records held by a bank
  • the location of one’s vehicle on public roads or its arrival at a private residence
  • Areas outside the home and related buildings (“curtilage”) such as a barn
  • Garbage left for collection on curb
  • Land visible from a public place, even from a plane or helicopter
  • Smell of one’s car or luggage
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10
Q

Warrant Requirements

A
  1. Probable Cause
  2. Particularity
    - must describe with reasonable precision the place to be searched and the items to be seized
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11
Q

Probable Cause of Warrant based on Use of Informer

A

Totality of circumstances the information is reliable and credible

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12
Q

EXCEPTIONS TO WARRANT REQUIREMENT (where warrant not required)

A
  1. Search Incident to Arrest
  2. Inventory Search (Search Incident to Arrest)
  3. Automobile Exception
  4. Plain View
  5. Consent
  6. Stop and Frisk
  7. Hot Pursuit, Evanescent Evidence, and Emergency Aid exceptions
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13
Q

Invalid Affidavit the Warrant Relied Upon

A

Defendant must prove:

  1. False statement was included in the affidavit by the affiant
  2. the affiant intentionally or recklessly included the false statement; and
  3. false statement was material to the finding of probable cause.
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14
Q

Search Incident to Arrest: Requirements (Exception to Warrant Requirement)

A
  1. Constitutional arrest

2. Must be contemporaneous in time and place with the arrest.

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15
Q

Search Incident to Arrest: Automobiles (Exception to Warrant Requirement)

A

May search interior of car incident to an arrest when:

  1. Arrestee is unsecured and still may gain access to the interior of the vehicle; OR
  2. police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle
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16
Q

Plain View (Exception to Warrant Requirement)

A

Police may make a warrantless seizure when they:

  1. Are legitimately on the premises
  2. Discover evidence, fruits or instrumentalities of crime, or contraband;
  3. see such evidence in plain view
17
Q

Automobile Exception: (Exception to Warrant Requirement)

A

Police may search entire car w/out warrant when:

  1. have probable cause
  2. search area that might reasonably contain the item for which they had probable cause to search. (Ex: cant search a six inch box found in the car when they have probable cause to look for a stolen TV)

Note: Police may tow back to station and search it later

18
Q

Consent: (Exception to Warrant Requirement)

A

Warrantless search is valid if the police have voluntary consent.
(Note: knowledge of right to withold consent is not a prerequisite to establishing a voluntary consent.)

19
Q

Administrative Inspections and Searches

A 
Generally: Inspector must have warrant to search private residence and commercial building (more lenient basis for probable cause) 
Probable Cause (in admin inspections)A showing of a general and neutral enforcement plan will justify issuance of a warrant.
20
Q

Administrative Inspections and Searches: Exceptions Permitting Warrantless Searches

A
  • Admin searches to seize spoiled or contaminated food
  • Admin searches of a business within a highly regulated industry
  • Inventory searches of arrestees or their vehicles pursuant to established department procedure
  • Searches of airline passengers prior to boarding
  • Searches of parolees and their homes
  • Government employee’s desks and file cabinets where scope is reasonable and work related need or reasonable suspicion of work-related misconduct
  • Drug tests of railroad employees involved in an accident
  • Drug tests of persons seeking customs employment in positions connected to drug interdiction
  • Drug tests of public school students who participate in extracurricular activities.
21
Q

Hot Pursuit (Exception to Warrant Requirement)

A

Police in hot pursuit of fleeing felon may make a warrantless search and sizure and may even pursue the suspect into a private dwelling. (about 15 minutes)

22
Q

Evanescent Evidence (Exception to Warrant Requirement)

A

Police may also seize without a warrant evidence likely to disappear before a warrant can be obtained.

23
Q

Emergency Aid Exception (Exception to Warrant Requirement)

A

Police may also enter premises without a warrant to address emergencies that could affect health or safety.

24
Q

Inventory Search (Search Incident to Arrest) (Exception to Warrant Requirement)

A

A search incident to incarceration or impoundment , the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. Police may make an inventory search of an impounded vehicle.

25
Q

Wiretapping and Eavesdropping

A

A valid warrant authorizing a wiretap may be issue if :

  1. There is showing of probable cause
  2. the suspected persons inolved in the conversations to be overheard are named,
  3. the warrant describes with particularity the conversations that can be overheard
  4. the wiretap is limited to a short period of time
  5. the wiretap is terminated when the desired information has been obtained
  6. return is made to the court, showing what conversations have been intercepted.
26
Q

Exceptions to Wiretapping and Eavesdropping Warrant Requirement

A
  1. Person assumes the risk that the person to whom he is talking is an informer who is wired
  2. A speaker has no 4th Amendment claim if he makes no attempt to keep a conversation private.
27
Q

Due Process Implications in Method of Obtaining Evidence

A

Evidence is inadmissible if obtained in a manner:
1. Offending a sense of justice
Note: Violates due process
-Reasonableness of searches within a person’s body is determined by balancing society’s need against the magnitude of the intrusion (Ex: blood sample ok but surgery need to be weighed)

CRIMINAL PROCEDURE (16 decks)

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