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Criminal Procedure > Fourth Amendment > Flashcards

Fourth Amendment Flashcards

1
Q

What does the 4A generally provide?

A

Freedom from unreasonable searches and seizures

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2
Q

What constitutes a seizure?

A

under the totality of the circumstances, a reasonable person would feel they were not free to decline the officer’s requests or otherwise terminate the encounter

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3
Q

What constitutes an arrest?

A

police take someone into custody against their will for purposes of prosecution or interrogation

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4
Q

What is the probable cause requirement for an arrest?

A

Arrests require probable cause – trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime, based on the totality of the circumstances

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5
Q

When is a warrant required for an arrest?

A

Generally no if arresting a person in a public place but yes if to effect a nonemergency arrest of person in their home. officer executing the warrant cannot enter if they do not have reasonable suspicion the suspect is inside

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6
Q

What is an investigatory detention (stop and frisk) and what are police authorized to do during one?

A

if police have reasonable suspicion of criminal activity or involvement in completed crime, supported by articulable facts (no mere hunches), they may detain for investigative purposes

With reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for a weapon

Must act diligently and reasonably in confirming or dispelling suspicions

Can ask person to identify and usually can arrest for failure to do so, or arrest if other probable cause arises

This also applies to brief investigatory property seizures

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7
Q

When may police stop a car?

A

If they have reasonable suspicion to believe a law was violated

If there are special law enforcement needs, cops may stop cars at roadblocks without individualized suspicion so long as (1) cars stopped on basis of neutral, articulable standard, (2) designed to serve purposes closely related to particular problem pertaining to automobiles and their mobility (e.g., test for drunk drivers is ok, searching for illegal drugs invalid)

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8
Q

Does an officer’s mistake of law in stopping a car invalidate the seizure?

A

No as long as the mistake was reasonable

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9
Q

Who is seized when a car is stopped?

A

all occupants

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10
Q

May police order occupants of a seized car out?

A

Yes, in the interest of officer safety. May also frisk the occupants and search the passenger compartment if they believe them to be armed

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11
Q

Are pretextual stops lawful?

A

Yes, as long as there is actual probable cause

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12
Q

May police detain a person in order to obtain a warrant?

A

If police have probable cause to believe drugs or contraband are hidden in a suspect’s home, they may prevent them from entering the home for a reasonable period of time in order to prevent destruction of evidence prior to obtaining a warrant

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13
Q

May a person be detained pursuant to a warrant to search for and seize contraband?

A

yes, if the warrant is valid and the detention is of an occupant of the premises during a proper search

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14
Q

What do officers need to bring someone to the station against their will?

A

probable cause for arrest

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15
Q

Are seizures to bring someone before a grand jury protected by the 4A

A

No

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16
Q

What if an officer uses deadly force?

A

there has been a 4A seizure when police officers use deadly force to apprehend a suspect, and police may not use deadly force unless reasonable under the circumstances

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17
Q

What is reasonable suspicion?

A

more than vague suspicion and less the probable cause (determined by totality of circumstances)

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18
Q

What must be present where reasonable suspicion is based on an informant’s tip?

A

Indicia of reliability, which can include but does not have to be, predictive information

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19
Q

Is a dog sniff during a routine traffic stop a search?

A

No unless the stop is extended

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20
Q

Can the police use a drug sniffing dog outside of the home of someone suspected to be a drug dealer?

A

not without probable cause

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21
Q

What analytical model should be applied to evidentiary searches and seizures?

A

x

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22
Q

What do evidentiary searches and seizures require to be valid under 4A?

A

Must be reasonable, which under all but six circumstances means there must be a warrant

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23
Q

Whose conduct does the 4A protect against?

A

x

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24
Q

What are the two ways in which searches and seizures can implicate an individual’s 4A rights?

A

x

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25
Q

When does a person have 4A standing?

A

x

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26
Q

Does a person have a reasonable expectation of privacy in documents in the hands of third parties?

A

No, e.g., bank account info

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27
Q

Does a person have a reasonable expectation of privacy in stored cell-site location information?

A

Yes

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28
Q

Does a person have a reasonable expectation of privacy in the sound of their voice?

A

no

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29
Q

Does a person have a reasonable expectation of privacy in their handwriting?

A

no

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30
Q

Does a person have a reasonable expectation of privacy in the color/paint on their vehicle?

A

no

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31
Q

Does a person have a reasonable expectation of privacy in bank records?

A

no

32
Q

Does a person have a reasonable expectation of privacy in areas outside the home and curtilage (like a barn)?

A

no

33
Q

Does a person have a reasonable expectation of privacy in garbage left for collection at the curb?

A

no

34
Q

Does a person have a reasonable expectation of privacy in land visible from a public place (even if from the air)?

A

no

35
Q

Does a person have a reasonable expectation of privacy in the smell of their car or luggage?

A

no

36
Q

Does a search of a suspect’s home with sense-enhancing technology violated their legitimate expectation of privacy?

A

yes, if done with technology not available to the general public to obtain information that could not otherwise be obtained without physical intrusion into the home

37
Q

Do police need a warrant to place a GPS tracker on a suspect’s vehicle?

A

yes

38
Q

Does a person have a reasonable expectation of privacy in the location of their car on a public street or roadway?

A

no (but police cannot obtain stored CSLI for location data nor can they attach a GPS to a person’s car absent a warrant)

39
Q

When can officers obtain a warrant?

A

if there is probable cause to believe the seizable evidence will be found on the person or premises at the time of execution. Must submit information to neutral and detached magistrate for probable cause determination.

40
Q

What must an affidavit based on an informant’s tip meet?

A

The totality of circumstances test – may be sufficient even though the reliability or credibility of the informant or their basis for knowledge are not established. identity generally need not be revealed. credibility and knowledge basis are relevant factors though

41
Q

When will a search warrant issued on the basis of an affidavit be held invalid?

A

If the defendant establishes that

(1) a false statement was included in the warrant by the affiant
(2) the affiant intentionally or recklessly included the false statement
(3) the false statement was material to the finding of probable cause
* restrictive test

42
Q

What if a warrant was not supported by probable cause?

A

The prosecution may still use evidence obtained by the police in reasonable good faith reliance on a facially valid warrant even if it is ultimately found not to have been supported by probable cause

43
Q

What must a warrant have?

A

(1) probable causes (a fair probability that the contraband or evidence will be found in the area searched)
(2) Particularity – A warrant must be precise on its face. It must describe with reasonable precision the place to be searched items to be seen. A warrant that is not precise is unconstitutional REGARDLESS of whether or not the underlying affidavit contained such precision

44
Q

Can a warrant be obtained to search the premises of non-suspects?

A

yes, with probable cause

45
Q

Who may execute a warrant?

A

Only the police and they may not be accompanied by third parties to execute a warrant in a home unless that person is there to identify stolen property

46
Q

How must the police execute a warrant?

A

Without unreasonable delay. They must knock and announce their purpose and wait a reasonable time for admittance, unless the officer has reasonable suspicion based on facts that announcing would be dangerous, futile, or would inhibit the investigation.

47
Q

What is the scope of search pursuant to a warrant?

A

The search is limited to what is reasonably necessary to discover the items described in the warrant. Police can seize other contraband, fruits or instrumentalities of crime they discover within such a search, regardless of whether or not described in the warrant.

48
Q

What is the consequence of a violation of the knock and announce rule?

A

This will NOT result in suppression of evidence otherwise properly obtained

49
Q

What may police do with regard to persons on the premises during a search for contraband?

A

The warrant authorizes the occupants to be detained for the duration of the search but it does not authorize the police to search persons found on the premises if not named in the warrant. Nor does it authorize police to stop/detain/search persons who leave the premises shortly before the warrant is executed (unless there is reasonable suspicion for a Terry stop)

50
Q

What are the exceptions to the warrant requirement?

A

(1) Search incident to a lawful arrest
(2) The automobile exception
(3) Plain view searches
(4) Consent
(5) Stop and frisk
(6) Exigent circumstances (hot pursuit, emergency aid, evanescent evidence)
(7) Public school searches
(8) Administrative/inventory searches
(9) Border and foreign country searches

51
Q

What are the requirements for a warrantless search incident to a lawful arrest?

A

Police may search the person arrested and any areas into which he might reach to obtain weapons or destroy evidence (wingspan) (including a protective sweep if they believe accomplices are present)

(1) the arrest must be lawful (based on probable cause and meeting any other constitutional requirements)
(2) the search must be contemporaneous in time and place with the arrest

52
Q

What are the rules for searching automobiles during a search incident to a lawful arrest?

A

The police may search the passenger compartment of an automobile incident to an arrest if at the time of the search:

(1) the arrestee is unsecured and still may gain access to the interior of the vehicle, OR
(2) police reasonably believe there is evidence of the offense for which the person was arrested inside the vehicle

53
Q

What are the rules for searching a cell phone incident to a lawful arrest?

A

Officers may examine the phone’s physical attributes but not its data absent a warrant

54
Q

What are the rules for breath or blood tests incident to a lawful arrest?

A

Contemporaneous with a DUI arrest, police may administer a warrantless breath test but not a warrantless blood test

(Balancing rational: intrusion on privacy vs. government interest)

55
Q

What test does the court use to determine the validity of a search incident to a lawful arrest re: things not in existence at the adoption of the 4A?

A

Balancing test – weigh the intrusion on the person’s privacy against the government’s interests

56
Q

When may officers take an arrestee’s DNA swab?

A

A DNA swab at the police station is a reasonable 4A search if officers have made an arrest supported by probable cause to hold for a serious offense

57
Q

What is the automobile exception to the warrant requirement?

A

If the police have probable cause to believe that a vehicle contains the fruits, instrumentalities, or evidence of a crime, they may search the entire vehicle and any container inside which might reasonably contain the item for which they had probable cause to search. This includes the belongings of passengers as well as the driver. If the police only have probable cause to search a container in the car, they can only search the container.

With this probable cause, they may lawfully tow the vehicle to the station for the later search. [Police may also warrantlessly seize any vehicle in a public place that they have probable cause to believe its itself contraband.]

EXCEPTION: Even with probable cause, police may not search a vehicle parked in a home’s curtilage without a warrant.

58
Q

Distinguish the search of a car pursuant to the automobile exception from the search of a car pursuant to the SILA exception.

A

Under SILA, there has to be an arrest and the probable cause is related to the person. The search is limited to the passenger compartment of the car.

Under the auto exception, the probable cause is related to the car itself and everything in the car, including the trunk, may be searched.

59
Q

When may police make a warrantless plain view search/seizure?

A

(1) When they are legitimately on the premises
(2) Discover evidence, fruits or instrumentalities of crime or contraband
(3) see such evidence in plain view (or plain feel!)
(4) have probable cause to believe (it must be immediately apparent) that the item is evidence, fruits, instrumentalities of crime or contraband

60
Q

When is a warrantless search valid based on consent?

A

Police may search without a warrant if they have voluntary consent

61
Q

Who may consent to a search?

A

Any person with apparent equal right to use or occupy the property/place searched. An occupant cannot give valid consent when a co-occupant is present and objects. If objecting occupant is removed for a reason unrelated to the refusal, police may proceed with the search on the basis of the other occupant’s consent.

62
Q

When is consent negated?

A

If police say they have a warrant and it later turns out to be invalid, an occupant’s consent based on the declaration of a warrant does not cure the unreasonableness of the search

63
Q

Is knowledge of the right to withhold consent necessary for consent to be voluntary?

A

no

64
Q

When may police conduct a Terry search/stop and frisk?

A

They may stop a person without probable cause if they have articulable and reasonable suspicion of criminal activity. This stop may be accompanied by a protective frisk only if if there is reasonable belief that the person is armed and dangerous. The scope of the frisk is usually limited to an outer clothing pat down unless there is specific information that the suspect has a weapon in particular area of their clothing. During a patdown, an officer may reach into the suspect’s clothing if they reasonably believe that, based on “plain feel” that they have a weapon or contraband in their clothing

65
Q

When may police conduct a search based on exigent circumstances?

A

In hot pursuit of a fleeing felon (must generally be within fifteen minutes of the fleeing felon) – authorization for warrantless searches and seizures and can enter into private dwellings in pursuit

Exigent circumstances: may enter home w/o warrant if they have reason to believe evidence will be destroyed so long as the risk of destruction was not created through threat of or actual 4A violation

Evidence likely to disappear before warrant obtained may be seized

Emergencies affecting health and safety allow officers to enter home without warrant

66
Q

When may cops conduct inventory searches?

A

(search incident to incarceration)

Prior to incarceration fo arrestee, they may search the arrestee’s personal belongings and entire vehicle so long as done pursuant to established routine

67
Q

When are administrative searches/inspections permissible?

A

Though inspectors need warrants to search private residences and commercial buildings, they don’t need probable cause usually – enough to have a general and neutral enforcement plan.

Examples of permitted warrantless administrative searches:

    • to seize spoiled and contaminated food
    • business within a highly regulated industry
    • inventory searches
    • searches (including strip searches) of prisoners prior to admission to prison population
    • searches of airline passengers prior to boarding
    • searches of parolees in their homes even without reasonable grounds so long as there is an authorizing statute
    • searches of govt employees’ desks and file cabinets (reasonable scope and work-related need/suspicion of work-related misconduct)
    • drug tests of RR employees involved in an accident
    • drug tests of persons seeking customs employment in positions connected to drug interdiction
    • drug tests of public school students involved in extracurriculars
68
Q

What is required for public school searches?

A

No warrant or probable cause required for public school officials to search students or their possessions, only reasonable grounds for search

Reasonable if it (1) offers a moderate chance of finding evidence of wrongdoing, (2) measures taken in search were reasonably related to the objectives of the search, and (3) not excessively intrusive in light of student’s age and sex and the nature of the infraction

69
Q

What are the rules regarding searches in foreign countries?

A

No 4A protections where search is in foreign country of alien who does not have a substantial connection to the US

70
Q

What are the rules regarding border searches?

A

No warrant, probable cause or reasonable suspicion is necessary to conduct a search at the US border

Roving patrols inside the boarder may stop vehicles to question occupants with reasonable suspicion that some of the occupants are undocumented aliens

Vehicles may be stopped at fixed boarder checkpoints without reasonable suspicion

Travelers whom border agents reasonably suspect to be smuggling contraband in their stomach may be detained

Border searches include the opening of international mail with reasonable cause to suspect it contains contraband

Immigration officials may conduct factory surveys to verify the citizenship of employees

Illegally obtained evidence may be used in a civil deportation hearing

71
Q

Are wiretapping and other similar surveillance measures 4A searches and what are the rules?

A

Yes and they require a valid warrant

A wiretap warrant will issue if

(1) probable cause
(2) the suspected persons involved in the convos to be overheard are named
(3) warrant describes with particularity the convos to be overheard
(4) limited to a short period of time
(5) terminates when information is obtained
(6) the information intercepted is then demonstrated to the court

72
Q

What 4A standing is involved in a wiretap?

A

No 4A protections for convos a speaker made no attempt to keep quiet. You assume the risk that the person you are talking to is wired.

73
Q

Are pen registers covered by the 4A?

A

Pen registers – records of numbers dialed from a phone – are not controlled by 4A (but may require state judicial approval to obtain)

74
Q

When does a search violate the Due Process Clause?

A

When the manner of obtaining the evidence shocks the conscience or offends a sense of justice

75
Q

When is a search within a person’s body reasonable?

A

Balancing – society’s need against magnitude of intrusion

Blood sample usually ok but surgery requires great need

Criminal Procedure (12 decks)

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