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Criminal Procedure > Fourth Amendment > Flashcards

Fourth Amendment Flashcards

1
Q

Checklist for Criminal Procedure Questions

A
  1. Was there government action?
  2. If so, did it trigger a constitutional right (for example, was it a search or seizure, or was the suspect subjected to custodial interrogation)?
  3. If so, did the government violate the constitutional right (for example, was the search or seizure unreasonable, or did the police violate the Miranda rule)?
  4. If so, is YOUR defendant entitled to the remedy of exclusion?
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2
Q

The Fourth Amendment protects?

A
  1. protects from unreasonable search and seizures

2. Requires probable cause

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3
Q

The Fifth Amendment provides?

A
  1. prohibits coercion of confessions
  2. prohibits unreliable identifications
  3. provides privilege against self-incrimination
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4
Q

The Sixth Amendment provides?

A

Provides a person who is formally accused
The assistance of counsel of all critical stages of the adversarial process

Confrontation clause: requires testimonial evidence be subject to adversarial testing

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5
Q

How is the US constitution incorporated to the states?

A

14th amendment

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6
Q

A state statute that grants police authority to engage in conduct that violates the federal constitutional standard is

A

invalid

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7
Q

The Fourth Amendment applies only to:

A

the government, not private conduct

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8
Q

Silver Platter Doctrine? Effect?

A

When a private party acting on his own acquires evidence that the government later seeks to introduce in a criminal prosecution, it does not trigger 4th amendment

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9
Q

when a private party acts at the direction of a government agent or pursuant to an official policy, then liability for searches

A

Any search or seizure is subject to 4th amendment scrutiny

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10
Q

A person is seized when, as the result of government action:

A

when a reasonable person in his position would not feel free to leave or otherwise terminate the encounter

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11
Q

The Fourth Amendment’s “reasonableness requirement” is triggered by

A

any government seizure of a person or property.

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12
Q

If a reasonable person would feel free to leave or terminate the encounter, there is

A

no seizure

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13
Q

A seizure occurs when the police use

2

A

(1) physical force to restrain a suspect, or

(2) when they make a show of authority followed by submission.

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14
Q

If a suspect is located in a naturally confined location (like a bus), the test for seizure is

A

whether a reasonable person would feel free to terminate the encounter with the polic

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15
Q

All arrests are

A

seizures

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16
Q

What is a Terry Stop

A

a “brief investigatory seizure” because police require the suspect to interact with them, therefore triggering the Fourth Amendment.

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17
Q

The permissible duration of a Terry Stop is?

A

The time necessary to confirm or deny the suspicion

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18
Q

If a Terry Stop is confirmed?

A

The suspicion becomes probable cause and arrest is justified

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19
Q

If a Terry Stop is denied?

A

The seizure must terminate

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20
Q

Terry Stop v. Arrest

A

Investigation of reasonable suspicion v. instigation of an action

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21
Q

For property to be seized

A

police must take some action that results in a “meaningful interference with a possessory interest.”

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22
Q

If police take control of property?

If police place something on the property (like a beeper) that does not interfere with the owner’s use of the property?

A
  1. seized

2. not seized

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23
Q

A search triggers?

A

the reasonableness requirement of the fourth

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24
Q

A search is?

A 
any government (1) "Investigatory trespass" against a textual 4th Am interest  (person, papers or effects) OR 
(2)  Intrusion into a reasonable expectation of privacy (REP).
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25
Q

Investigatory Trespass is?

A

Any government activity that intrudes upon the target’s person,
home (to include the curtilage—intimate area around the home—not open feilds),
papers,
or effects
for the purpose of finding or gathering evidence of a crime qualifies as a search within the meaning of the Fourth Amendment:

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26
Q

A trespass qualifies as a Fourth Amendment search only if the police do so with

A

investigatory motive

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27
Q

When determining if the trespass is a search

A

Weigh

Where the police go look or how they get to a certain place

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28
Q

A person may assert his Fourth Amendment rights only when

A

only when the government intrudes on a reasonable expectation of privacy

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29
Q

What is required for a reasonable expectation of privacy

A

a. The defendant manifests a subjective expectation of privacy by making an effort to shield the thing or the activity from the public, and
b. The expectation is objectionably reasonable because it is an expectation society is willing to recognize.

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30
Q

A person does not have a REP in something she knowingly

A

exposes to the public

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31
Q

when the objects to be seized are held out to the public.

A

No reasonable expectation of privacy

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32
Q

Police use of animals trained to detect only contraband is a search when? When not?

A
  1. a search when commit an investigatory trespass

2. not at other times (the smell is exposed to the public, humans just cannot smell it)

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33
Q

A defendant does not have a reasonable expectation of privacy in the following items
(10)

A

(1) handwriting exemplars
(2) voice exemplars
(3) bank records
(4) # that came in and # that came out, which record telephone numbers dialed
(5) information on an email sent through an ISP (but the contents of the email are within a REP) (to, from, subject);
(6) conversations the suspect believes are private that the police record with the consent of the other party to the conversation (a false friend)
(7) Open fields: unoccupied areas beyond the curtilage of the home, even if police trespass into the open fields
(8) Naked-eye observations of private property by air so long as police comply with flight limitations
(9) Ariel photography of the large fenced in area around an industrial complex
(10) Discarded property, such as commingled garbage and abandoned rental premises.

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34
Q

For a search or seizure to comply with the fourth amendment

A

it must be reasonable

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35
Q

If police obtain a warrant to conduct the search or seizure, it creates

A

a presumption of reasonableness

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36
Q

To challenge the search or seizure by warrant, the ∆ bears the burden of rebutting this presumption by proving:

A

(1) The warrant was not based on probable cause
(2) The magistrate was not neutral or detached
(3) The warrant failed to describe with particularity of the (a) thing to be seized; or (b) the place to be searched

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37
Q

When the government uses a devices that are not in public use to see through REP, then

A

It is a search

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38
Q

a search or seizure without a warrant is presumptively

A

unreasonable, the government bears the burden of proving the search or seizure fell within an established exception to the warrant requirement.

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39
Q

A valid warrant to search or seize must

A

be issued by

  1. a neutral and detached magistrate,
  2. based on probable cause,
  3. and describe with particularity the thing to be seized or the place to be searched.
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40
Q

The information (affidavit) presented to the magistrate must provide

A

relevant facts that lead to the conclusion that:
it is more probable than not that a person committed a crime
or
Evidence will be found at a locations

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41
Q

The information presented to the magistrate must not be

A

Stale (when are the facts that the warrant is based on no longer good?)

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42
Q

the method of warrant execution may render the police action unreasonable, when

A

The method of executing the warrant shocks the conscience

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43
Q

Knock and Announce Rule

A

Police must normally “knock and announce” their identity before entering a home to execute a warrant.

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44
Q

When do the police not need to knock and announce?

A

Knock and announce is not required if police have reasonable suspicion to believe that doing so will endanger officers or lead to the destruction of evidence or flight of the suspect.

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45
Q

The violation of the “knock and announce” rule

2

A
  1. violates the 4th amendment

2. does not prompt evidence exclusion

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46
Q

Checklist for Search or Seizures

A

(1) First ask whether there was a search or seizure, if so

(2) Ask whether there was a valid warrant
(a) if so, look for facts that indicate the warrant was defective and the police acted in bad faith when they relied on it;
(b) If not, then consider whether an exception applies

(3) Does the search or seizure fall into one of the established exceptions covered below:
(a) If so, the search or seizure is reasonable;
(b) If not, the search or seizure is unreasonable.

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47
Q

the reasonableness of a search or seizure will require police to establish

A

individualized suspicions that amounts to either probable cause or reasonable suspicion.

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48
Q

Probable cause is always required for

A
  1. a full scale intrusion to find evidence or inrest
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49
Q

Reasonable suspicion justifies what intrusions

A

brief investigatory seizure or a cursory search

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50
Q

Probable Cause is “fair probability” defined

A

as facts and circumstances that would warrant a reasonable person to conclude that the individual in question has

  1. committed a crime (for an arrest) or
  2. that specific items related to criminal activity can be found at a particular location (for a search).
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51
Q

How is probable cause evaluated, from who’s standpoint?

A

An objective standpoint –> what officer subjectively believed does not matter

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52
Q

Probable cause is always required to engage in a

A

full scale intrusion

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53
Q

Probable cause is often established based on

A

eye witness accounts, forensic evidence and tests, suspects own admissions or conduct, tips from confidential or anonymous informant

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54
Q

How to evaluate if a tip is sufficient to trigger probable cause

A

The totality of the circumstances test is used to assess the reliability of an Informant’s tip to establish probable cause:
The factors considered are:
(a) Veracity of the informant (what’s their hit rate)
(b) Basis of knowledge (could they know)
(c) Police investigation (validated?)

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55
Q

Reasonable Suspicion is defined as

A

a belief based upon articulable information {more than a mere hunch} used by a reasonable person or police officer that the suspect has or is about to engage in illegal or criminal activity.

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56
Q

Reasonable Suspicion will never justify

A

justify an arrest or a full-blown evidentiary search.

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57
Q

To transform an officers “subjective “unreasonable” suspicion” to “reasonable” suspicion, the officer must

A

have some verifiable objective fact to support her suspicion

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58
Q

Arrests requirements

A

probable cause is always required for arrest

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59
Q

How can probable arrest for arrest be obtained?

A

Variety, rely on informants tent

60
Q

There is no requirement to obtain a warrant to arrest a suspect in public, so long as:

A

Police have probable cause to arrest

61
Q

When is an arrest warrant required

A

before police can arrest an individual in his own home, absent exigent circumstances or consent.

62
Q

Exigent circumstances allows

A

a warrantless entry into a suspects home

63
Q

Exigent circumstances allowed when?

A

{The offense is more serious than a minor misdemeanor +
The officer did not unlawfully create the exigency.}
And

1) An arrest attempt outside the home is thwarted b/c suspect retreats into the home
(2) There is insufficient time because delay would allow the subject to evade arrest or destroy evidence
(3) The arresting officer is in hot pursuit and has probable cause to effect a valid arrest

64
Q

Reasonable suspicion that crime is about to or has just occurred may be established by

A
  1. Police observations and eyewitness reports
  2. headlong flight from police in a high crime neighborhood(running from cops)
  3. An informant’s tip coupled with police investigation that corroborates the accuracy of the informant’s predictions (does not have to show insider access
65
Q

if a tip that provides nothing more than existing information, even if corroborated by police investigation, it

A

does not establish even reasonable suspicion.

66
Q

The permissible scope of a Terry Stop is the time required

A

Acting in due dilligence to

  1. confirm; or,
  2. deny the suspciion
67
Q

How can reasonable suspicion rise to probable cause?

A

If during the investigatory stop the police officer obtains additional information rising to the level of probable cause, the Terry Stop may be escalated to an arrest and the suspect may be searched incident to that arrest.

68
Q

The fact that an officer may have also had some improper subjective basis for a terry stop, does

A

not result in finding the stop was illegal if objectively you can conclude there was a basis

69
Q

No warrant is required to seize property that is:

A

in the officer’s plain view

70
Q

The plain view doctrine requirements

3

A

No warrant is required to seize property that is:

(1) The police are in a lawful vantage point when they observe the item
(2) The incriminating nature of the item is immediately apparent (upon seeing, has probable cause)
and
(3) The officer has lawful access to get to the item

71
Q

When is the plain view doctrine active?

A

With a warrant, without a warrant, at all times

72
Q

The plain view doctrine is an exception to?

A

The warrant requirement for a seizure

-It does not justify a warrantless search for contraband.

73
Q

What does the plain view doctrine not allow for

A

A search for contraband

74
Q

The scope of the search is limited to

A

Premises or the person described in the warrant

75
Q

contraband not named in the warrant may be lawfully seized under the “plain view” doctrine, so long as

A

Police search within the scope of the warrant

76
Q

A search warrant confers to the police the authority to

A
  1. search named places

2. search named persons

77
Q

A search warrant for a premises carries with it

A

the right to detain occupants during the search but not the right to search them

78
Q

A warrantless search is unreasonable unless it falls within one of the following established exceptions.

A
  1. SITLA Searches incident to lawful arrest
  2. Plain View
  3. Automobile Exception
  4. Border Exception
  5. Consent Special Needs Requirement
  6. Hot Pursuit
  7. Exigent Circumstances
  8. Administrative Search
79
Q

Searches Incident to a Lawful Arrest (SITLA): allows for

A

a search of the arrestee and

the area within their immediate control (wingspan, lunging area)

80
Q

SITLA is triggered by

A

a lawful arrest, which means an arrest based on probable cause

81
Q

authority to conduct a search incident to citation

A

there is no authority

82
Q

A search incident to a lawful arrest must be

2

A
  1. contemporaneous with arrest; and,

2. may precede it

83
Q

If a suspect is arrested in a home, the scope of SITLA is limited to

A
  1. the area within his lunging distance and,

2. does not include the rest of the house

84
Q

if police have a reasonable suspicion that others in the home may put them at risk, they may

A

conduct a cursory protective sweep to find people lying in wait (looking for people who might ambush them) - limited to places where people may hide

85
Q

When an arrest is affected while the defendant is in a car or has immediately exited the car, a special rule applies to the scope of the SITLA
(

A
  1. may search arrestee
  2. If ∆ able to access car –> search interior
  3. If ∆ unable to access car –> search for evidence related to arrest
86
Q

If the arrestee has genuine access to the interior of the car after being placed under arrest, the SITLA extends to the:

A

interior of the car and all containers within the interior of the car

87
Q

If as the result of being placed under arrest the arrestee does not have genuine access to the interior of the car, a search of the interior is permitted only when:

A

the police have a reasonable belief that evidence related to the crime of arrest is in the car

88
Q

Automobile Exception to the Warrant Requirement

A

Police may search an automobile or any other self-propelled conveyance (motor home, boat, or airplane) without a warrant as long as they have probable cause

Applies to all containers as long as there is probable cause

89
Q

Once a container is put inside an automobile, the police

A

can search the container if they have probable cause and it is inside the automible

90
Q

The permissible scope of the search of the automobile exception

A

is dictated by the probable cause, wherever it’s likely the suspect can hide the criminal conduct

91
Q

Automobile Exception to the Warrant Requirement for immobile vehicles

A

Inapplicable if it absolutely cannot move

92
Q

The Special Needs Doctrine

A

Police are permitted to use checkpoints to conduct brief seizures and/or limited searches no individualized suspicion or warrant in response to a public safety danger that cannot be addressed by complying with the normal individualized suspicion/warrant requirements.

93
Q

The primary purpose of a special needs search or seizure

A

To protect the public from imminent danger

If just general crime control, then the exception is inadequate

94
Q

Common special needs checkpoint searches include

A

sobriety checkpoints
search for recently escaped prison inmates, counter-terrorism checkpoints,
and checkpoints to search for suspects of a recent crime.

95
Q

A special needs search or seizure must be

2

A

(a) Based on a fixed formula that deprives individual officers of the discretion to select the subjects (stop every third car)
(b) Narrowly tailored in scope to address the specific threat
(c) conducted in a location and in a manner that minimizes citizen anxiety

96
Q

Can police officers randomly stop a vehicle to check license and registration?

A

no, not without reasonable suspicion

97
Q

The Border Exception allow custom officials to

2

A

(i) Stop vehicles at permanent checkpoints located at or near the border
(ii) Conduct “routine” searches of people and property.

(all INTL airports & ports)

98
Q

What is required for a non-routine border search?

A

reasonable suspicion

99
Q

If an individual waives her right to privacy by consenting to a search

A

the search is reasonable + no need for probable cause

100
Q

Consent to search must be

A

Voluntary: assessed based upon the totality of the circumstances

101
Q

Consent is invalid if it is obtained by

A

asserting a fake warrant,
fraudulently,
under duress,
or pursuant to an unlawful police threat (a threat to do something that the officer has no authority to do).

102
Q

Police requirement to inform persons of ability to decline consent

A

there is none

103
Q

Scope of a consent is determined by

A

officer’s request + ∆’s permission (must explicitly limit)

104
Q

if consent is obtained following an unlawful seizure, then

A

consent is fruit of the poisonous tree

105
Q

Who can consent to a search?

A

Any person who has joint control or use of shared premises may consent to a valid search and any evidence seized can be used against either occupant

106
Q

Police reliance on third party consent is reasonable so long as

A

the person granting the consent has actual authority over the place searched; or,

A reasonable person would believe that person had such authority {apparent authority}

107
Q

Can a landlord give permission to search a tenant’s residence?

A

No

108
Q

Can an employer consent to search an employee’s private storage area?

A

No

109
Q

Police may not reasonably rely on third party consent when the

A

other resident is present and objecting

110
Q

When police are in actual hot pursuit, the police may

2

A
  1. enter and search a private dwelling: while in hot pursuit of a fleeing suspect. May enter dwelling of suspect or any other person
  2. Police may execute a warrantless arrest the suspect in the premises and seize any contraband that satisfies the plain view requirements
111
Q

Exigent Circumstances warrantless search exception

3

A

Police may search without a warrant when the situation indicates waiting to obtain a warrant will result in imminent*

(a) Destruction of evidence;
(b) Escape of the accused;
(c) Risk to police or others in the area.

112
Q

Exigency justifies a warrantless search and seizure of evidence in or on a suspect’s body provided that:

A

(a) There is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained; and,
(b) The procedure for seizing the evidence is reasonable + does not shock the conscience

113
Q

At a crime scene, exigency allows the warrantless search for

A
  1. other killers

2. victims

114
Q

The Terry Search (frisk) is?

Justified when?

A

(1) A Terry Frisk is a cursory protective search for weapons or some other instrumentality that creates an imminent danger to the officer of others in close proximity.
(2) A Terry Frisk is justified only by reasonable suspicion the suspect Is armed and danger. It is not automatic because the police did a terry stop.

115
Q

Terry Stop v. Terry Frisk; justified when?

A

Terry stop: reasonable suspicion for crime is afoot

Terry Frisk: suspect is armed and dangerous

116
Q

Scope of Terry Frisk

A

The exterior of the clothing to determine if there is a weapon

117
Q

If the frisk/pat down results in the officer feeling something he knows immediately is a weapon or any other contraband

A

The officer may seize without a warrant (plain touch)

118
Q

If in frisk/pat down the officer feels something he knows is not a weapon but merely suspects is contraband and has to manipulate

A

The manipulation exceeds the scope of the terry frisk and the seizure is unreasonable

119
Q

Terry Frisk has been extended to

A
  1. automobile where police have reasonable suspicion a person stopped will have immediate access to a weapon.
  2. A cursory sweep of the interior of a home when police enter the home to serve a warrant based on reasonable suspicion that: are others who might be present and dangerous to the police
120
Q

Administrative searches are conducted

A

“agency compliance inspection” whereby compliance with administrative regulations or health and safety codes is verified for a non-criminal purpose; and have a lower standard

121
Q

Requirement for administrative searches

A

Reasonable suspicion

122
Q

Normally, agency inspectors will also be required to obtain an administrative warrant to search private homes or businesses, with some exceptions:

A

Airport Screenings

Border Searches

123
Q

In order to claim the remedy of exclusion, three requirements must be satisfied:

A

a. The unreasonable search or seizure must trigger the remedy of exclusion;
b. The defendant claiming the remedy (seeking exclusion) must have standing;
c. The facts do not support applying an exception to the exclusionary rule

124
Q

Exclusion requires that the violation:

A

the ∆’s fourth amendment privileges

125
Q

Exclusion ∆ standing occurs when

A

∆ must show that the unreasonable search or seizure intruded on his personal constitutional rights.

126
Q

When ∆ can assert someone else’s constitutional rights

A

Never

127
Q

What must ∆ show to prove standing for exclusion?

A

Defendant must first show that the Fourth Amendment violation was directed against: his Fourth Amendment protection, not someone else’s

128
Q

A defendant has standing for exclusion if:

A
  1. He has ownership or a possessory interest in the place searched or the item seized;
129
Q

The owner of a car, or the person in possession of the car (like someone who rents a car) has standing to:

A

Seek exclusion of evidence resulting from an unreasonable search of their car

130
Q

Do passengers of a car have standing to complain about search of the car?

A

No

131
Q

Do passengers of a car have standing to complain about a seizure of the car?

A

when an automobile is seized, all occupants in the automobile are seized, even if they are just passengers with no ownership or possessory interest in the car

132
Q

Guests in another’s homes standing for exclusion?

A
  1. overnight guests have standing to challenge search of the home
  2. non-overnight guests do not have standing
133
Q

The exclusionary rule

A

A defendant who has Fourth Amendment standing may invoke the exclusionary rule to prohibit the government from introducing evidence obtained as a direct or derivative result of an unreasonable search and siezure

134
Q

Fruit of the Poisonous Tree Doctrine

A

Any additional evidence derived from the initial illegality, including oral statements and physical objects as tainted fruit of the poisonous tree

135
Q

How to determine if the evidence is part of the poisonous tree

A

Always ask if there is a “but for” connection between the evidence the prosecution seeks to admit and a violation of the defendant’s constitutional rights. If so, the evidence falls within the fruit of the poisonous tree doctrine.

136
Q

Does a miranda violation qualify as a poison tree?

A

No, only consequence is inadmissibility of confession

137
Q

Exceptions to Fruit of the Poisonous Tree exclusion

3

A
  1. Independent Source
  2. Attenuation
  3. Inevitable Discovery
138
Q

Independent source Exceptions to Fruit of the Poisonous Tree exclusion

A

If the evidence is obtained from a lawful independent source it is even if the police acted illegally to confirm the location of the evidence

139
Q

Inevitable discovery Exceptions to Fruit of the Poisonous Tree exclusion

A

if: the police establish they would have inevitably discovered the evidence through a different and independent source

140
Q

Attenuation Exceptions to Fruit of the Poisonous Tree exclusion

A

Evidence with a “but for” link to a poison tree may be so distant from the initial illegality that the taint of the poison is purged and the evidence is admissible

141
Q

Attenuation common when

A

when police obtain a voluntary confession following an unlawful arrest (as long as it does not come right after)

142
Q

Factors that support attenuation include

A

1) different location
2) passage of time
3) difference officer
4) valid miranda warning

143
Q

Good Faith Exception to Exclusion

A

when police act in good faith reliance on a warrant that is subsequently ruled invalid, the evidence seized will not be subject to exclusion.

144
Q

Limits on the good faith exception to exclusion

A

Inapplicable where,

  • A reasonable officer would not have relied upon a warrant that is later found to be invalid.
  • Officer lies or misleads the majistrate
  • Where the warrant is facial defective that an officer should not rely upon it
  • Where the reasonable officer knows the magistrate is not neutral and attached
145
Q

Requirements for a boarder patrol search

A

≠ require reasonable suspicion or probable cause

Criminal Procedure (4 decks)

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