Kaplan Pgs 371-396 Fourth Amendment Flashcards
1
Q
When a private party acts on his own and acquires evidence and then the government wants to introduce that evidence into a criminal prosecution, is that OK?
A
Yes, because no state actor was initially involved in getting the evidence
2
Q
If a police officer demands that an airline employee inspect a passenger’s bag before a flight, is the fourth amendment triggered?
A
Yes, because that made the flight attendant’s actions public action
3
Q
Is an arrest warrant required before someone is arrested in a public place?
A
No.
4
Q
If an arrest is not an emergency and you are doing it in a person’s home, what is required?
A
A warrant
5
Q
What is the two-step approach to determine if someone is in custody?
A
– whether a reasonable person would have felt that he was at liberty to terminate the interrogation. This is based on these factors: location of the questioning, duration, statements made during the interview, presence of physical restraints, release of the interviewee at the end of the questioning
- if the environment presents the same coercive pressures as a station house questioning would in Miranda
6
Q
In order to determine if someone is in custody, whose mindset is considered?
A
Only a reasonable person in the suspect’s position. It doesn’t matter what the actual suspect thought or what the interrogating officers thought
7
Q
Who can police officers strip search?
A
People who have been arrested for a crime
8
Q
If you have been arrested, can police collect DNA from you?
A
Yes
9
Q
What is needed to arrest someone?
A
Probable cause
10
Q
From where can police get information in order to develop probable cause to arrest someone?
A
- their own observations (like witnessing a crime or observing behaviour prior to a stop)
– third parties (indirectly through an informant)
11
Q
If police develop probable cause through information that came from an informant, what is required?
A
The informant’s tip had to have specific details, and those details must be reliable and confirmed before the moment of seizure
12
Q
Police must have an arrest warrant before they can arrest someone in their own home, unless what?
A
The person consents or there are exigent circumstances
13
Q
How do the requirements for an arrest warrant compare to those for a search warrant?
A
They are virtually the same
14
Q
What would be considered an exigent circumstance that would allow a warrantless arrest in a person’s home?
A
- an arrest attempt was being made outside of the home but was thwarted because the suspect retreated into the house
– insufficient time to get a warrant and the delay would let the suspect evade arrest or destroy evidence
– the police were in hot pursuit and had probable cause to effect a valid arrest of the suspect
15
Q
If police officers see the sale of drugs happen in front of a residence, and when the suspect sees the police officers he runs into the house with the drugs, can police follow the suspect into the house to arrest him without a warrant?
A
Yes, because they have probable cause and there is insufficient time to get a warrant before the suspect will destroy the evidence
16
Q
If police violate the knock and announce rule, does that trigger exclusion of the evidence?
A
No
17
Q
When must police officers knock and announce their identity before entering a house?
A
Anytime unless exigent circumstances exist (which includes a reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit effective investigation)
18
Q
When can an arresting officer break windows or other property?
A
If reasonably required to execute the warrant
19
Q
When can a private citizen make an arrest?
A
For felonies committed in his presence
20
Q
When can a police officer arrest a person without a warrant?
A
If he has reasonable grounds to believe that the person committed a felony
21
Q
If a police officer did not personally observe a misdemeanour occur in his presence, can he arrest the person without an arrest warrant?
A
No
22
Q
When can deadly force be used to prevent the escape of a felony suspect?
A
If the suspect poses a threat of serious physical harm to the officer or to others
23
Q
When is probable cause evaluated?
A
Based on what was known at the moment of the intrusion
24
Q
What is an anticipatory or conditional warrant?
A
A warrant that is conditioned on an event happening such as the delivery of a package
25
What are the two showings that must happen in order for a court to issue an anticipatory warrant?
- if the triggering condition happens, there must be a fair probability that evidence of the crime will be found at a particular location, and
– there must be probable cause that the triggering condition will occur
26
Can an anonymous tip alone give adequate information for probable cause?
No, but an anonymous tip coupled with police corroboration of some of the information can
27
What is a frisk?
A limited pat down of a suspect's outer garments looking for weapons
28
If during a frisk for weapons, an officer feels an item that reasonably feels like a weapon or contraband, can he seize that item?
Yes
29
Is flight enough for probable cause or reasonable suspicion?
It is not enough for probable cause but it is enough for reasonable suspicion
30
What is required in order for information to be considered a reliable tip in order to give a reasonable suspicion?
The objective evidence requirement says that the information has to be confirmed as reliable before actually doing the stop. The tip has to contain some predictive information.
Ie: if a tip just says someone is standing by a payphone with a plaid jacket, that does not give reasonable suspicion because it has no predictive information
31
Does a passenger in an automobile have standing to challenge the validity of a search of the vehicle?
No, because he does not have any ownership or possessory interest in the vehicle
32
Would a passenger in a car have standing to challenge a police stop of the vehicle?
Yes, because all of the occupants of a car are seized during a traffic stop. This means that the passenger would have standing to challenge the search and seizure of items inside the vehicle as fruit.
33
Do overnight guests in another person’s home have standing?
Yes
34
Do short term guests, non-overnight social guests, and commercial guests have a reasonable expectation of privacy in a host home such that they would have standing?
No
35
What are things that a defendant does not have a reasonable expectation of privacy in even if they are held out to the public?
– handwriting exemplars
– voice exemplars
– bank records
– pen registers that record things like telephone numbers that have been dialed
– private conversations that have been eavesdropped on
36
If police use a drug dog to sniff for drugs on a person's front porch, is that considered to be a search?
Yes
37
Do canine searches constitute fourth amendment violations?
Only if they physically intrude on a constitutionally protected area such as the home, curtilage, or person
38
Why are administrative searches OK to do without a warrant?
Because they are protecting airline passengers from weapons and explosives. If a passenger doesn’t want to be searched, he can decline to board the plane
39
Are drug sniffing dogs allowed to be used at a traffic stop?
Yes, as long as the prolongation of the stop is brief
40
A search done by government authority without a warrant is presumptively what?
Invalid unless a specially carved out exception applies
41
A reasonable search under the fourth amendment must be done according to what?
Either a warrant or an exception
42
If probable cause is illegally obtained, can that still support a search warrant or a warrantless search?
No
43
How must an arrest warrant describe a person to be arrested?
Either by name or by reasonably specific descriptions so the officers can locate the suspect with reasonable effort
44
Is a justice of the peace that is also the state attorney general considered to be neutral and detached such that he can issue a warrant?
No
45
If a magistrate takes a monetary reward for issuing the warrant, is he considered to be neutral and detached?
Of course not
46
If you are applying for a warrant, how does that work?
You either give oral testimony or an affidavit that sets forth the facts or circumstances that the magistrate will rely on. The magistrate then makes an independent judgement of the reasonableness of the request to determine if there was probable cause
47
Can you submit the information for a magistrate to determine if a warrant should be granted electronically through fax or email?
Yes
48
If police are lawfully in a home to arrest someone and they see contraband that isn’t named in the warrant, can they seize that contraband?
Yes, under the plain view doctrine
49
What is the two prong test for probable cause with relation to getting a warrant?
– the testimony or affidavit given to the magistrate must have facts or circumstances that are still relevant
– it must be sufficient for a reasonable person to conclude that it is more probable than not that the evidence or the person will be found
50
If a warrant is based on an informant tip, how do you determine if probable cause has been established?
```
Under the totality of the circumstances:
– credible information
– reliable informant
– police corroboration
– declaration against interest
```
51
Must an informant reveal his identity?
No, and the government is not required to disclose this if it will jeopardize the informant's safety or the integrity of the investigation
52
What is a situation where it would be improper to issue a warrant even though there was probable cause?
If the intrusion would be unreasonable. I.e.: it would be improper to require that a bullet be removed from a robbery suspect when it is deeply imbedded in his body, the removal would damage his body, and would require general anaesthesia
53
How can a defendant challenge a warrant?
He can challenge the affidavit the warrant was based on if he can prove by a preponderance of the evidence that:
– the affidavit contained false statements
– the statements were made intentionally, knowingly, or in reckless disregard of the truth, and
– the magistrate's finding of probable cause could not have been made without those false statements
54
What are the limitations that are placed on a search warrant?
- only the police can execute warrants
– the execution must be prompt while probable cause still exists
– unless there are exigent circumstances the officer must knock and announce before attempting a forcible entry
55
If someone is not named in a warrant, can they be searched just because they were present at the search location?
No
56
Can private citizens help the police execute warrants?
No. That is a violation of the fourth amendment. Police cannot bring members of the media or third parties into a home during the execution of a warrant unless those people are there to aid the execution of the warrant. The police could bring a third-party for the sole purpose of identifying the stolen property
57
If police do a search or an arrest with an invalid warrant, what happens?
Unless exigent circumstances apply, that will be a violation of the fourth
58
In what situation would a search that was done according to an invalid warrant not require the exclusion of any evidence that was found?
If the police were acting in good faith on the basis of an objectively valid warrant as long as the invalidity was due to an error by the issuing magistrate
59
Warrantless searches are generally considered to be what?
Unconstitutional
60
What are the seven major warrant exceptions that allow a search without a warrant?
```
– SITLA
– automobile exception
– plainview
- consent
– searches pursuant to a stop
– hot pursuit
– exigent circumstances
```
61
If police are just issuing a traffic citation and not making an arrest, can they search the driver or the car for contraband?
No
62
If police pull someone over for a traffic violation and notice a bulge in the defendant's jacket that they believe is a weapon, can they do a full search of his person?
Yes, under search incident to lawful arrest because they had a reasonable suspicion that the defendant was armed
63
What is the rationale behind the warrant exception for automobiles?
There’s a lesser expectation of privacy in an automobile, boat, or airplane, and their inherent mobility requires prompt action
64
If a drug dog alerts outside of a vehicle, what does that do?
Gives probable cause to search a vehicle for narcotics
65
When the police have probable cause to search a vehicle, can they seize the vehicle and search it later even if there’s enough time to get a warrant between the seizure and the search?
Yes
66
Under the automobile exception, can police inspect a container that is in an automobile?
Yes, if they have probable cause to believe it contains contraband or evidence
67
Does the fourth amendment require police officers to advise bus passengers of the right not to cooperate or to refuse to consent to a search?
Not so long as a reasonable person would have felt free to decline the request to search or otherwise terminate the encounter
68
Can police officers randomly stop vehicles to check the license and registration?
Not without a reasonable suspicion of wrongdoing since this gives too much discretion to the officer. This is OK if the stops are random and based on a fixed formula like every fifth vehicle.
69
Why are police allowed to set up drunk driving checkpoints but they can’t set up checkpoints to search for illegal drugs?
Because drunk driving checkpoints protect the public whereas illegal drug ones violate the fourth amendment since their primary purpose is an interest in crime control
70
If the police lawfully stop a vehicle, can they ask all of the occupants of the vehicle to exit even without any suspicion that any of them have been engaged in criminal activity?
Yes
71
What power do customs officials have with regard to stopping vehicles?
They can do this at permanent checkpoints that are located at or near the border without any requirement of a reasonable belief that the occupants are illegally entering the country
72
What is involved in the special-needs doctrine as it relates to warrant?
This is an exception to the requirement of individual suspicion for searches that allows a warrantless and suspicionless search when special needs that are beyond normal law-enforcement needs make getting a warrant impracticable. Then the cops can use checkpoints to do brief seizures in response to a public safety danger that can’t be addressed by complying with the normal rules for suspicion and warrants.
Ie: sobriety checkpoints, searches for recently escaped prison inmates, counterterrorism checkpoints, searches for suspects of a recent crime
Once the court finds that the primary purpose was a special need, it must do a reasonableness check through a balancing test that looks at the nature of the privacy interest involved, the degree of governmental intrusion, and weighs it against the immediacy of the government's needs and the efficacy of the program to address them
This Hass to be based on a fixed formula that doesn’t allow the officers discretion
73
What is an example of the special-needs doctrine as a warrant exception?
If police have heightened intelligence reports that there could be a subway bombing, they can randomly search bags of subway passengers. But they can only look in bags that could conceal a bomb
74
Police can seize property under the plain view doctrine if what?
– the police are lawfully present in the place where the objects can be seen
– the officers have a lawful right of access to the object
– it is immediately apparent that the object is incriminating
75
Under the plain view doctrine can police officer move objects to get a better view?
No
76
What is involved in the warrant exception of consent?
An individual can waive his fourth amendment rights as long as it is voluntary
77
What does it mean that consent to a search must be voluntary?
It has to be a voluntary intelligent decision that is made without coercion, although the police do not have to tell the defendant that he has a right to withhold consent. This is based on the totality of the circumstances. Consent cannot be obtained by duress, fraud, or coercion. Although certain situations provide an assumed voluntariness because of the behaviour the person is engaging in such as travelling by plane or being in a regulated business. Consent can be revoked at any time and then the search must cease
78
Who controls the scope of a search when consent is the reason for doing a search?
The consenting party. Any contact that exceeds that scope is unlawful
79
If a co-tenant is present at the time of a search and does not object to it, does he have standing to object to the reasonableness of the search later?
No
80
What is a stop?
A momentary detention accompanied by limited questioning of a criminal suspect. This can happen in the suspect's home, vehicle, or on the street
81
Is a stop considered to be a seizure?
Yes
82
What is required to do a stop?
You must have reasonable suspicion to believe that criminal activity may be afoot
83
What is reasonable suspicion?
A belief based on articulable information that is more than a mere hunch that the suspect has or is about to engage in illegal or criminal activity. Objective basis
84
What is the hot pursuit warrant exception?
Police can enter and search a private dwelling while they are in reasonable pursuit of a fleeing suspect
85
Under the hot pursuit exception to a warrant, when can police use force?
If it is reasonable under the circumstances to stop a fleeing suspect. They can use deadly force if needed to stop a fleeing suspect who is endangering innocent bystanders
86
When can police do a warrantless search and seizure of evidence in or on a suspect's body?
- if there’s probable cause to believe that the nature of the evidence makes it easily destroyed or likely to disappear before a warrant can be gotten, and
– the procedure for seizing the evidence is reasonable
87
What is an example of an exigent circumstance that would require removing evidence from someone’s body?
Some of that has just been suspected of killing another person and may have DNA evidence under his fingernails can easily remove or destroy this evidence, so police can obtain it from his body by reasonable means
88
As of 2013 what is the rule about police getting blood alcohol evidence from a drunk driving suspect?
Even though this evidence will diminish overtime, police must generally get a warrant before they can take the blood of a drunk driving suspect
89
When can police enter a home without a warrant under the exigent circumstances exception?
If they have a reasonable belief that someone in the home is in serious imminent harm
90
When can police do a warrantless search of a fire scene?
A few hours after the fire to determine its causes, but several days later to get evidence of arson is not allowed without a warrant
91
Under what circumstances can police do a search of a crime scene without a warrant?
To seek other victims or a remaining killer
92
What are some situations where an administrative search would be OK without a warrant?
– businesses that are traditionally subject to extensive regulation and affect an important public interest
– search of a storage room of a fire arms warehouse during reasonable hours
– search for highly contaminated food
93
What are some examples of extensively regulated industries that administrative searches can be done on?
- pharmacies
– liquor distributors
– businesses that need a license to do their specific business
94
Administrative warrants require a lesser showing of what?
Probable cause
95
What are situations where an administrative warrant requires something less than strict probable cause?
– when reasonable standards exist for building inspections like municipal, health, or safety functions
– if the search is not for the purpose of criminal investigation
– for drug testing railroad employees associated with an accident or customs agents seeking a promotion
– in schools there’s a right to do searches as long as there are reasonable grounds that the search will turn up evidence that a student has violated the law or the rules of the school
96
What are the things that it’s unresolved about whether a student has a legitimate expectation of privacy in?
Lockers, desks, and other school property
97
Why can child and social services officers do an inspection of a home without a warrant?
Because they are not doing a criminal investigation
98
Under what circumstances do border crossing agents not need probable cause?
As long as they are doing a routine search that is not particularized for a specific person or a specific property
99
Where can border crossing and checkpoint searches happen?
- any port of entry into the United States
– international borders
– international airports
– post offices where foreign mail enters
100
What is the only time that reasonable suspicion is required for a border search?
If there’s going to be an unusually intrusive search like a body cavity search or one that results in the destruction of property
101
What is wire tapping?
When police use an electronic surveillance device without the suspect's knowledge or consent
102
What are situations that a warrant can be issued for police to do wire tapping?
– if they have probable cause that a crime has been or is being committed
– if the warrant names the suspects and describes the particular conversation to be overheard, and
– the wire tap is only valid for a brief period
103
In what situation can wire taps be done without a warrant?
Foreign matters of national security
104
If the president requests a wire tap of a domestic citizen without a warrant, can that happen?
No
105
When can a government employer do a search without a warrant?
He can do a non-investigatory work related search to investigate work related misconduct without a warrant. This can be a search of electronic communications if it is reasonable and justified at the inception, and the measures that are used reasonably relate to the objectives of the search, and are not excessively invasive
106
In the case that involves the police department issuing pagers to its officers with a contract that specified a monthly character limit and fees for going over and one officer constantly went over, so the police chief requested that the service provider give a transcript of the pages to determine if the messages were work related or personal, and it turned out they were personal so the officer was disciplined, is that a proper government employer search that doesn’t require a warrant?
Yes, because the search was reasonable and for a work related purpose
