Law of Arrest & Search and Seizure Basics Flashcards
arrests - general rule and definition of a “seizure of the person”
• rule: The Fourth Amendment guarantees the right to be free from UNREASONABLE seizures (i.e., arrests).
• Definition: A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer’s request or to terminate the encounter.
»> Police pursuit of a suspect is not—by itself—a seizure.
»> For a seizure to occur, there must be an intentional physical application of force by the police or a submission to an officer’s show of force.
»»> The application of physical force (e.g., shooting a person) with intent to restrain is considered a seizure, even if the force does not succeed in subduing the person.
2 requirements of a lawful arrest
warrants (sometimes) and probable cause
arrests and the warrant requirement
general rule: Arrest warrants are generally not required for FELONY arrests in public places
where warrants ARE required:
Arrest warrants are required for non-emergency arrests (felonies and misdemeanors) of a person in the person’s own HOME
»> Police may arrest a person in his home (or another person’s home) without a warrant if the police are in hot pursuit of the person or enter the home for emergency assistance.
»> An arrest of a person just outside his home (or even in the threshold of the front door of his home) is a “public” arrest that does not require a warrant.
»> The police may forcibly enter a person’s home to enforce an arrest warrant only if the police have reason to believe the person is at home at the time of the entry.
»> The police DO NOT need a SEARCH warrant to enter the suspect’s home to execute an ARREST warrant.
Arrest warrants are also generally required for misdemeanor arrests, unless the misdemeanor was committed in the officer’s “presence.”
If the police intend to execute an arrest warrant in the home of a third party, the police must have a separate search warrant to search for the subject of the arrest warrant (although the arrestee may lack standing to challenge a warrantless search).
arrests - the probable cause requirement
Probable Cause. The officer must have probable cause to make an arrest. For probable cause to exist, there must be a SUFFICIENT LIKELIHOOD that a crime has occurred and that the arrestee has committed or is committing that crime.
**must look to the TOTALITY OF THE CIRCUMSTANCES
effect of an illegal arrest
• Effect of an Illegal Arrest: An unlawful arrest has NO EFFECT on a future prosecution
o BUT evidence that is the fruit of unlawful arrest may be excluded under the exclusionary rule, and
o AND an unlawful arrest may also lead to civil liability.
search and seizure - general rule and 4 elements/flow chart
• rule: The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures.
o To challenge a search under the Fourth Amendment, the following must be shown:
»> (1) the search must be the result of state action;
»> (2) the person challenging the search (i.e., the criminal defendant) must have standing to challenge the search; AND
»> (3) the person searched must have had a reasonable expectation of privacy in the place searched or the government physically intruded into a constitutionally protected area (of the defendant) for evidence-gathering purposes.
(these three elements, taken together, constitute a search)
o If these three elements are present, any evidence found during the search is inadmissible unless:
»> (4) the police had a valid search warrant (or in good faith relied on a defective search warrant) or there is an applicable exception to the warrant requirement.
search and seizure - state action
State Action: The Fourth Amendment applies only to government conduct, which includes searches by:
o a. publicly paid police at all times
o b. a private individual acting at the direction of the police
o c. public school officials
o d. but does not include private persons (e.g., mom or landlord) or privately paid police (e.g., a store security guard) acting on their own initiative
search and seizure - standing general rule and 4 examples
Standing: As a general rule, a person may assert the exclusionary rule only for violations of his own constitutional rights. In other words, a person must have “standing” to object to the illegality of a search
o standing exists where:
the person owns or has a right to possession of the premises searched (including his or her own body)
the person lives on premises searched (e.g., roommate, tenant)
the person is an overnight guest on the premises searched
the person is in lawful possession and control of a rental car even if he is not listed on the rental agreement
search and seizure - 3 situations when there is no standing
o However, there is no standing:
for passengers in a car that do not own the car and deny ownership of the property taken from it
»>this assumes the car was lawfully stopped—e.g., for a traffic violation; if the stop is unlawful, all occupants have standing to challenge the stop
for persons who do not own or live on the premises searched and who are not overnight guests on the premises
to challenge searches of (or evidence seized from) a co-defendant or co-conspirator
search and seizure - REP general rule and long list of exceptions
o (a) Reasonable Expectation of Privacy (“REP”): A person generally has a REP in his or her body (including wallets, purses, etc.), home, the curtilage of the home (i.e., adjacent garage/carport and a small yard next to the home), and private business premises (e.g., an office or locker). But a person has no REP if the item or place searched is public in nature or is held out to the public, such as:
sound of a person’s voice (voice exemplar) or look of a person’s face (like a lineup)
style of person’s handwriting (handwriting exemplar)
***items of property the defendant has transferred (sold or given) to a third party (e.g., defendant stuffs drugs in girlfriend’s purse immediately before the police arrive)
telephone numbers dialed (pen register) ** but not the substance of the call or your location captured on CSLI, because that info is automatically conveyed, not voluntarily
paint on the outside of a car (scrapings)
***account records held by a bank or other business (but a person has a REP in cell phone site location information held by a commercial vendor)
VIN numbers in cars (even if the police must move items to see the number)
anything that can be seen across open fields (i.e., outside the curtilage of her home)
DNA swabs (upon arrest for a serious crime)
***anything that can be seen or photographed from a public sidewalk/street or from a third party’s private property (except for thermal imaging of the inside of a house)
anything that can be seen or photographed from a fly-over in public airspace (i.e. not 400 ft above a home or using special tech)
odors coming from luggage (but not squeezing luggage)
odors coming from a vehicle (dog sniffing), as long as the vehicle was lawfully stopped and not held beyond the time necessary to issue a ticket
garbage set out at the curb or alley for collection
***movement of a person or a person’s automobile (including with the use of electronic beepers if placed in the vehicle without committing a trespass - i.e. police putting beeper in bag that defendant purchases/receives and then puts in the car); a beeper may not be used to track movement within a dwelling
material held out for sale to the public
information divulged to a “false friend” (even if that friend is recording and transmitting without your knowledge)
o Parolees generally waive their REP as a condition of parole and the homes of persons on probation may generally be searched without a warrant if a valid regulation permits such searches.
search and seizure - physical governmental intrusion and wiretapping rule
o (b) Physical Intrusion (a/k/a Trespass): A Fourth Amendment search also occurs if the government physically intrudes into defendant’s constitutionally protected areas (e.g., body, home, curtilage of home, vehicle) for evidence-gathering purposes, such as:
a dog sniff on the porch of defendant’s home
a GPS device attached to defendant’s vehicle
»> long-term tracking of a vehicle with a GPS device would also violate defendant’s reasonable expectation of privacy
a satellite-based tracking device worn on defendant’s body
o In addition, wiretapping/eavesdropping requires a warrant, unless ONE PARTY to the conversation consents to government monitoring, OR the conversations are conducted in a reckless fashion so that they are overheard by others.
search and seizure - if the first 3 elements are satisfied, what must the police have to make the search reasonable?
Evidence is Inadmissible Unless: If there is state action and the person has standing and REP (or there was a physical intrusion) –
o the police must have either:
(a) a valid search warrant or
(b) in good faith relied on a defective search warrant or
(c) there is an applicable exception to the warrant requirement.
curtilage doctrine (main inquiry and four factors)
o curtilage doctrine: 4th Am protection of the home extends to the area immediately surrounding the house – yards, sheds, etc. (Dunn)
Four Factor Test to determine if an area falls within the home’s curtilage:
»> (1) the proximity of the area claimed to be curtilage to the home,
»> (2) whether the area is included within an enclosure surrounding the home,
»> (3) the nature of the issues to which the area is put, AND
»> (4) the steps taken by the resident to protect the area from observation by people passing by
• **the factors are not to be applied mechanically – the central question is “whether the area in question is so intimately tied to the home itself that it should be placed under the home’s umbrella”
