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Criminal Procedure > Fourth Amendment: Search Warrants, Warrantless Searches, and Warrant Exceptions > Flashcards

Fourth Amendment: Search Warrants, Warrantless Searches, and Warrant Exceptions Flashcards

1
Q

Presumption of Unreasonableness

A

A search conducted without a warrant is presumptively invalid unless it falls within a specifically carved-out exception.

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2
Q

Search Warrant Requirements

A

A search warrant must be issued by a neutral & detached magistrate after an adequate showing of PC and must describe with particularity the place to be searched and the items to be seized.

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3
Q

Search Warrant Requirements: Illegally Obtained PC

A

Will not support a search warrant.

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4
Q

Search Warrant Requirements: Neutral and Detached Magistrate

A

A magistrate cannot take $ in return for issuing a warrant (is not neutral) nor can the magistrate supervise the scope of the search (not detached).

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5
Q

Oral Testimony or Affidavit that Is Submitted to the Magistrate

A

Must set forth the facts or circumstances relied upon by the magistrate who must determine the reasonableness of proposed search/seizure and if there is PC.

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6
Q

Challenging the Affidavit

A

A D may challenge the affidavit upon which a warrant was issued by proving by a preponderance of evidence that:

  • The affidavit contained false statements
  • The statements were made intentionally, knowingly, or in reckless disregard for the truth
  • The magistrate’s finding of PC could not have been made without the false statements.
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7
Q

Search Warrant Requirements: PC

A

Requires relevance and reasonableness.

  • (Relevance)- the testimony or affidavit presented to magistrate contains facts or circumstances that are still relevant and not out of date
  • (Reasonableness)- facts or circumstances must be sufficient that a reasonable person would conclude it to be more probable than not evidence of named items/persons will be found.
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8
Q

Can Informant Tips be a Basis for PC for a Search Warrant?

A

Informant tips can justify a warrant if PC is established by a TOC (credibility of info, reliability of info, police confirmation, and declaration against interest). Identity does not have to be disclosed.

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9
Q

Informant Tips: Insider Information

A

Corroborating a prediction that any neighbor with an “axe to grind” could make to the police (like the car someone drives) does not indicate that the informant really knows anything about criminal activities, therefore, such info will usually be inadequate for PC.

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10
Q

Search Warrant Requirements: Particularity

A

The warrant must describe with particularity the place to be searched and the item or person to be seized. Absent independent justification (e.g. plain view) police must stay within the scope of the warrant.

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11
Q

Detention During Execution of an Arrest Warrant

A

Keep in mind that a warrant properly issued for the search of contraband carries with it implicit authority to detain occupants on the premises during a search.

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12
Q

Searching Occupants During the Execution of a Search Warrant

A

If police have a search warrant for a premises:

  • they may search the individual identified in the warrant
  • however, they can only search unnamed individuals at the premises if there is an independent justification such as arrest or consent (mere presence at the location is not enough).
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13
Q

Execution of a Search Warrant (Limitations)

A

Include:

  • Police presence only
  • Promptness
  • Knock and Announce
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14
Q

Execution of a Search Warrant: Police Presence Alone

A

Only the police, not private citizens, may execute a warrant. It is also a violation of the Fourth Amendment for police to bring members of media or other third parties into a home during the execution of a warrant when presence does not aid execution (e.g. having a third party there solely to identify stolen property).

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15
Q

Execution of Search Warrant: Promptness

A

A search warrant must be executed promptly while PC still exists

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16
Q

Execution of a Search Warrant: Knock and Announce

A

Is required unless there are exigent circumstances. But remember that a violation of knock-and-announce does not result in suppression of evidence.

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17
Q

Execution of a Search Warrant: Shocks the Conscience

A

Warrant execution that “shocks the conscience” is unreasonable

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18
Q

Exceptions to the Warrant Requirement (AACEIPSSTT) (10)

A

Include:

  • Automobile Exception
  • Administrative Searches
  • Consent
  • Exigency
  • Inventory
  • Protective Sweep
  • Searches Incident to Lawful Arrest (SITLA)
  • Special Needs/ Border
  • Terry Searches
  • Third-Party Consent
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19
Q

Exigency Exception

A

If police have PC, they may search without a warrant when they reasonable believe that waiting to obtain a warrant would result in:

  • imminent flight of the suspect
  • imminent destruction of evidence
  • imminent danger to police or others in the area
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20
Q

Exigency Exception: Hot Pursuit

A

When police are in hot pursuit of a suspect with PC to arrest them, exigency allows them to enter any home the suspect retreats into without a warrant – even the home of a third party.

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21
Q

Exigency: Destruction of Evidence

A
  • Remember that exigency is not invalidated if police conduct triggers the exigency unless the triggering conduct violates the Fourth Amendment
  • Exigency will not justify a warrantless home entry solely to preserve evidence of a minor offense (like a minor misdemeanor). However, imminent risk to occupants, even if resulting from a misdemeanor (like battery) does trigger the exigency exception.
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22
Q

Exigency: Blood Draws

A
  • Exigency may justify a warrantless blood draw to preserve evidence of blood alcohol, but only if the police reasonably believe that the BAC will be lost if they wait to obtain a warrant.
  • It is a case-by-case determination, therefore, a statute or policy that allows police to automatically conduct a warrantless blood draw to preserve BAC is overbroad and violates the Fourth Amendment
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23
Q

Search Incident to a Lawful Arrest (SITLA)

A

Police may automatically conduct a full-blown search of an arrestee and the area within their immediate control/lunging distance (including containers) as an incident of an arrest.

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24
Q

SITLA: Timing of the Search

A

The SITLA must actually be contemporaneous to the arrest.

25
Q

SITLA: Searches in the Home

A

If the suspect is arrested in their home, the scope of the SITLA is limited to the area within lunging distance and does not authorize a search of the entire home.

26
Q

SITLA: Relation to Arrest?

A

Evidence may be seized and used as evidence even if it is completely unrelated to the arrest.

27
Q

SITLA: Lawfulness of Arrest

A

For purposes of SITLA, the arrest needs to be supported by PC. It does not matter that an officer had an ulterior motive or had a hunch.

28
Q

SITLA: Automatic Nature

A

SITLA is an automatic exception, police need no justification for the search other than the fact that the suspect was placed under arrest.

29
Q

SITLA: Mistakes

A

If an officer conducts an arrest based on PC and discovers evidence during the SITLA, and it later turns out they arrested the wrong suspect, the search is still reasonable so long as the mistake was obj. reasonable.

30
Q

Automobile SITLA

A

(If arrestee has access to interior of the car)- police can search the interior and all containers within the interior.

(If arrestee has been secured and has no access to interior)- police can search the interior only if the police have reason to believe that evidence related to crime of arrest is in the car.

31
Q

Automobile Exception

A

Police may conduct a warrantless PC search of a car or any self-propelled conveyance without a warrant (justified by the inherent mobility of vehicles and pervasive government regulation). However, PC is required.

32
Q

Automobile Exception: What Is an Automobile?

A

A vehicle able to move at the “turn of a key” and located in an area on or proximate to the roads.

33
Q

Automobile Exception: Motor Homes

A

An automobile includes motor homes parked temporarily in a location proximate to public roads.

34
Q

Automobile Exception: Immobile Vehicles

A

The automobile exception does not apply to immobile vehicles (e.g. a vehicle in a junkyard or one without an engine).

35
Q

Containers with a Vehicle

A

If police have PC to search a vehicle, they may search any container within the vehicle. However, if they only have PC in the container itself, they can only search the container.

36
Q

Difference Between Automobile Exception v. Automobile SITLA

A

(Trigger)- SITLA requires an arrest while Automobile Exception requires PC for the vehicle

(Scope)- SITLA is limited to interior while the Automobile Exception can apply to the entire vehicle

37
Q

Inventory Exception

A

An administrative inspection of an impounded vehicle or an arrestee’s property once it is taken into police custody is permissible without a warrant or PC (justified in protecting arrestee’s property, protecting the government from false claims, and preventing contraband from entering a prison or impound lot).

38
Q

Inventory Search: Compliance with Regulations

A

An inventory search is normally reasonable so long as it complies with their inventory regulations (shows that it is administrative rather than investigative).

39
Q

Consent

A

Gives police permission to search without a warrant or PC. Any contraband that comes into plain view while searching within the scope of the consent may be seized.

40
Q

3 Elements of Consent to Search or Seizure Under Fourth Amendment

A

1) Consent must be unforced and the result of an informed decision
2) Must not exceed scope of consent
3) The consenting party must have authority to consent

41
Q

Consent: Voluntariness

A

Consent must be voluntary based on the TOC.

42
Q

Consent: Prohibited Conduct

A

There is no requirement to inform a suspect that they have the right to decline to give consent (voluntary does not mean intelligent). But consent cannot be acquired through police coercion through threats of unlawful action or by indicating that they will search anyway.

43
Q

Consent: Undercover Officers

A

Consent is valid if it is obtained by an undercover officer pretending to be involved in criminal activity (like an officer pretending to be a drug buyer).

44
Q

Can Denying Consent Lead to PC or Reasonable Suspicion?

A

No. Exercising a constitutional right does not make suspicion reasonable.

45
Q

Consent Based on an Invalid Warrant

A

Is deemed involuntary

46
Q

Consent: Revocation

A

Consent can be revoked at any time and the search must cease.

47
Q

Third Party Consent

A

An officer may rely on third-party consent so long as the third party had actual or reasonably apparent authority over the area.

48
Q

When Third Party Consent is Invalid

A

When police know or reasonably should know that another person has exclusive control such as:

  • landlord’s consent to search of a tenant’s apartment
  • motel owner’s consent to search a guest’s room
  • employer’s consent to search an employee’s private storage area
49
Q

Third Party Consent: Co-Tenants

A

Police cannot rely on third-party consent when the other party is present and objecting. However, police can rely on co-tenants consent in the other tenant’s absence (even when a former objecting tenant leaves or is removed via lawful arrest).

50
Q

Special Needs Exception

A

When the primary purpose of police action is the protection of the public from a serious immediate danger (instead of crime control or discovery of evidence). Must be:

  • Based on a fixed formula that deprives individual officers of any discretion to select subjects
  • Narrowly tailored in scope to address the specific threat; and
  • Conducted in a location and manner that minimizes citizen anxiety
51
Q

Things that the Special Needs Doctrine Might Include

A
  • Sobriety checkpoints
  • Search for escaped inmates
  • Counter-terrorism checkpoints
  • Drug-testing of airline pilots and railroad engineers
52
Q

Reasonableness of Special Needs Exception

A

Courts will weigh the special need against the privacy interest of the person searched. Relevant factors include:

  • the nature of the privacy interest involved
  • the character and degree of the governmental intrusion
  • the nature and immediacy of the government’s needs and the efficacy of the program in addressing those needs
53
Q

Border Protection Exception

A

As an incident of national sovereignty, government officials may:

  • Stop people and vehicles at permanent checkpoints located at or near (up to 100 miles inland) a border with no individualized suspicion (randomly); and
  • Conduct routine searches of people and property with no individualized suspicion (randomly).
54
Q

Border Protection Exception: When Reasonable Suspicion Is Required

A

Reasonable suspicion is required for:

  • Non-routine border searches (those unusually intrusive (body cavity))
  • Search that results in permanent destruction of property
  • Roving border stops on U.S. roads.
55
Q

Administrative Searches Exception

A

Agency-compliance inspections to determine compliance with health, safety, and administrative codes and regulations do not require a warrant so long as they are supported by reasonable suspicion.

Agency inspectors might be required to obtain an administrative warrant/authorization to search private homes or businesses (there is an exception for highly regulated businesses).

56
Q

Airport Screenings

A

In order to protect airline passengers from weapons and explosives, screenings are permitted based on individualized suspicion. There is no constitutional right to travel by commercial air. As a result, travelers implicitly consent to these screenings.

57
Q

Terry Frisk

A

A cursory protective search for weapons or some other instrumentality that creates imminent danger to officer or others. Is permissible when there is reasonable suspicion that the suspect is armed and dangerous. Keep in mind that a Terry Frisk is also a seizure.

58
Q

Scope of Terry Frisk

A

The scope of a Terry Frisk is limited to ruling out the risk of a weapon (patting outer clothing). If officer touches anything his sense of touch immediately indicates is contraband can be seized. But officer may not seize anything that he believes is evidence based on a mere hunch.

59
Q

Protective Sweep

A

When police lawfully enter a home and reasonably believe that there are others in the home who pose a threat to their safety, they may conduct a cursory protective sweep to rule out that danger. But this search is limited to places where people could be hiding.

Criminal Procedure (9 decks)

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