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July Exam - Criminal Procedure > Fourth Amendment - Exceptions to the Warrant Requirement > Flashcards

Fourth Amendment - Exceptions to the Warrant Requirement Flashcards

1
Q

Warrantless Searches

A
  • all unconstitutional unless they fit into one of the six recognized exceptions to the warrant requirement
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2
Q

Exceptions to the Warrant Requirement - List

A
  • search incident to constitutional arrest
  • automobile search
  • plain view
  • consent
  • stop and frisk
  • hot pursuit, exigent circumstances, evanescent evidence, emergency aid
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3
Q

Search Incident to Constitutional Arrest

A
  • incident to a constitutional arrest, police can search person + areas into which they might reach to obtain weapons or destroy evidence
  • can also make a protective sweep of the area if believe accomplices may be present
  • search must be contemporaneous w/ time + place of arrest but, at least wrt searches of automobiles, not necessarily simultaneous
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4
Q

Search Incident to Unconstitutional Arrest

A
  • the underlying arrest must be constitutional -> if not, any search incident to that arrest is also unconstitutional
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5
Q

Search Incident to Constitutional Arrest - Geographic Scope

A
  • the person and the areas within the person’s wingspan
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6
Q

Search Incident to Constitutional Arrest - Automobiles

A

Police may search passenger compartment of an automobile incident to arrest only if at the time of the search:
- arrestee is unsecured + still can gain access to interior of vehicle
- police reasonably believe that ev of the offense for which the person was arrested may be found in vehicle

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7
Q

Search Incident to Arrest - Tech Searches

A
  • to assess validity of searches re things that didn’t exist when 4th Am adopted, courts balance degree to which search incident to arrest intrudes upon individual’s privacy against degree to which search is needed to promote legit gov interests
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8
Q

Tech Search Incident to Arrest - DUI

A
  • DUI arrest justifies breath (but not blood) test
    -> police can administer warrantless breath test to determine alcohol levels contemporaneous w/ arrest for intoxicated driving
    -> rationale: breath test comparatively less intrusive + leaves no lasting sample w/ gov
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9
Q

Tech Search Incident to Arrest - Cellphones

A
  • police can search physical attributes of phone but not data (would need warrant for that)
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10
Q

Automobile Exception to Warrant Requirement

A
  • if police have probable cause to believe a vehicle contains fruits, instrumentalities, or ev of a crime, they may search the whole vehicle + any container that might reasonably contain the item for which they had probable cause to search
  • if warrantless search of vehicle is valid, police may tow vehicle to station + search later
  • however, if vehicle parked w/in “curtilage” (ex: driveway) of def’s home, can’t search w/o warrant
  • police can also seize vehicle from public place w/o warrant if have probable cause to believe the vehicle itself is contraband
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11
Q

Automobile Exception - Items in Vehicle

A
  • can search passenger’s belongings (search not limited to driver’s)
  • if police have probable cause only to search a container in a vehicle, they may search on the container, not other parts of the vehicle
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12
Q

Automobile Exception - Timing of Probable Cause

A
  • probable cause necessary to justify the warrantless search can arise AFTER the car is stopped, but must arise BEFORE anything or anybody is searched
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13
Q

Plain View Exception to Warrant Requirement

A

Police may make a warrantless search when they:
- are legitimately on the premises
- discover evidence, fruits or instrumentalities of crime, or contraband
- see such evidence in plain view, AND
- have probable cause to believe (i.e. it must be IMMEDIATELY apparent) that the item is evidence, contraband or a fruit or instrumentality of crime

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14
Q

Plain View Exception - Exam Tips

A
  • includes things officer smells or hears as well as sees
  • need to make sure the police officer is legitimately on the premises (or, if the officer opened a drawer and found something they weren’t looking for, had right to open that drawer in the first place)
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15
Q

Possible Triggering Events for Automobile Searches

A
  • officer constitutionally arrests driver
  • officer has probable cause to believe that automobile contains contraband or fruits, instrumentalities, or evidence of crime
  • driver or owner consents to search of automobile
  • officer stops automobile to investigate a crime or issue a citation
  • automobile impounded
  • automobile at US border or its functional equivalent
  • note to self - intended as a reminder list, but each of these has different scope and justification requirements -> see CMR chart on pg 18
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16
Q

Consent Exception to Warrant Requirement

A
  • warrantless search is valid if police have a voluntary consent
  • knowledge of right to withhold consent is NOT a prereq to establishing voluntary consent
  • scope of search may be limited to scope of the consent, BUT generally extends to all areas to which a reasonable person under the circumstances would believe it extends
17
Q

Consent Exception - Authority to Consent

A
  • any person with an apparent equal right to use or occupy he property may consent to a search
  • any evidence found may hen be used against any other owners/occupants
  • However, an occupant can’t give valid consent to search when a co-occupant is present and objects to search + search is directed against co-occupant
    -> BUT if co-occupant objected but is then removed for reason unrelated to the refusal (ex: lawful arrest) police may act on the consent of the remaining occupant, even if removed co-occupant had refused consent
18
Q

Stop and Frisk Exception to Warrant Requirement

A
  • Terry stop = brief detention for investigative purposes
  • Terry frisk = patdown of outer clothing + body to check for weapons
  • police officer may stop person w/o probable cause for arrest if articulable + reasonable suspicion of crim activity
    -> if officer reasonably believes that the person may be armed + presently dangerous, officer may conduct a protective frisk
19
Q

Stop and Frisk Exception - Scope of Intrusion

A
  • scope of frisk is generally limited to patdown of outer clothing
  • UNLESS officer has specific info that a weapon is hidden in a particular area of suspect’s clothing
20
Q

Stop and Frisk Exception - Admissibility of Evidence

A
  • during a patdown, an officer may reach into the suspect’s clothing + seize any item that the officer reasonably believes, based on plain feel, is weapon or contraband
  • such items are then admissible as evidence
21
Q

Stop and Frisk Exception - Automobile Stops

A

If vehicle is properly stopped for traffic violation + officer reasonably belives driver or passenger may be armed + dangerous, officer may:
1) conduct a frisk of the suspected person, AND
2) search the vehicle, so long as limited to areas in which a weapon may be placed

22
Q

Evanescent Evidence Exception to Warrant Requirement

A
  • evanescent evidence = evidence that might disappear quickly if police took the time to get a warrant
  • ex: scraping under fingernails w/o getting warrant is okay
  • note though that officers need warrant before taking blood sample for DUI b/c it’s practical to do so
23
Q

Hot Pursuit Exception to Warrant Requirement

A
  • police in hot pursuit of fleeing felon may make warrantless search + seizure + may even pursue suspect into private dwelling (including one that isn’t the suspect’s)
  • however, if fleeing person suspected of misdemeanor, their flight doesn’t always justify warrantless entry into a home -> officer must consider all circumstances to determine whether there’s a law enforcement emergency that justifies warrantless entry
  • generally, if police are not w/in 15 minutes behind fleeing felon, it’s not a hot pursuit
  • can also collect evidence they see in plain view while pursuing
24
Q

Emergency Aid Exception

A
  • police officer may enter premises w/o warrant if officer faces emergency that threatens the health or safety of an indiv or public
  • sometimes referred to as community caretaker exception (although that technically doesn’t allow officer to make warrantless entry into private residence)
25
Q

Administrative Inspections and Searches

A
  • inspectors must have a warrant for searches of private residences + commercial buildings, but the probable cause req to obtain warrant = more lenient than for other searches
    -> showing of general + neutral enforcement plan will justify issuance of warrant
26
Q

Administrative Searches - Exceptions Permitting Warrantless Searches

A
  • seem less like rules + more like particular circs upheld in court
  • to seize spoiled or contaminated food
  • search of business w/in highly regulated industry
  • inventory searches of arrestees pursuant to established department procedure
  • searches of prisoners before being admitted into general prison population
  • searches of airline passengers prior to boarding
  • searches of parolees + their homes
  • searches of gov employee desks + file cabinets, where scope reasonable + there’s a work-related need or reasonable suspicion of work-related misconduct
  • drug tests of railroad employees involved in an accident, persons seeking customs employment in positions connected to drug interdiction, + public school students who participate in extracurricular activities
27
Q

Public School Searches

A
  • warrant or probable cause NOT required for public school officials to search students or their possessions
  • only need reasonable grounds for the search
28
Q

Public School Searches - Standard

A

School search held reasonable only if:
- offers a moderate chance of finding ev of wrongdoing
- measures adopted to carry out search are reasonably related to objective of search, AND
- search isn’t excessive intrusive in light of age and sex of student + nature of infraction

29
Q

Searches in Foreign Countries

A
  • 4th Am doesn’t apply to searches + seizures by US officials in foreign countries = involving a non-US citizen, at least where non-citizen doesn’t have substantial connection to the US
30
Q

Searches at the Border or Its Equivalent

A
  • neither a warrant, probable cause, nor reasonable suspicion is needed to conduct search at US border, due to national sovereignty interests
  • roving patrols inside US border may stop vehicle for questioning of occupants if officer reasonably suspects vehicle contains undocumented individuals
    border officials may stop vehicle at a fixed checkpoint inside the border for questioning of occupants + may disassemble the vehicle, even w/o reasonable suspicion
31
Q

Opening International Mail

A
  • permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband
32
Q

Immigration Enforcement Actions

A
  • Immigration Services may do a “factory survey” of work force in a factory to determine citizenship of employees
  • even illegally obtained evidence may be used in civil deportation hearing
33
Q

Detentions + International Travel

A
  • officials w/ reasonable suspicion that traveler is smuggling contraband in stomach may detain traveler
34
Q

Wiretapping and Eavesdropping

A
  • wiretapping (+ other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes search under 4th Am
35
Q

Wiretap - Reqs for Warrant

A

Valid warrant for wiretap may be issued if:
1) there’s showing of probable cause
2) suspected persons involved in the conversations to be overheard are named
3) warrant describes with particularity the conversations that can be overheard
4) wiretap is limited to short period of time
5) wiretap is terminated when desired info has been obtained, AND
6) return is made to the court, showing what conversations have been intercepted

36
Q

Wiretapping - Exception

A
  • “the unreliable ear and uninvited ear”
  • speaker assumes risk that person to whom they’re talking either consents to gov monitoring the convo or is an informer wired for sound or taping the convo
  • speaker has no 4th Am claim if they attempt to keep a convo private
37
Q

Method of Obtaining Evidence That shock the Conscience

A
  • ev obtained in a manner that shocks the conscience (offends a “sense of justice”) is inadmissible under Due Process Clause
  • if crime is induced by official actions that shock the conscience, any conviction stemming from those actions is unconstitutional

July Exam - Criminal Procedure (14 decks)

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