Mid Term Flashcards
Exceptions Search Warrant
S - Search incident to arrest P - Plain View A - Automobile C - Consent E - Exigent Circ S - Special circumstances ; inventory, community care taking
Evaluation
- Standing?
- personally asserts own rights - Is Def one of the “People” protected?
- US citizen .. etc - Is the thing a - person, house, paper, or effect?
- Was it a Search? A Seizure?
- Was it Reasonable?
- Does Exclusionary Rule apply ?
Exclusionary Rule is a …?
Remedy to deter improper police actions
The gov’t shouldn’t be a law breaker
Does Exclusionary rule applies to states ?
Yes- Rule: All evidence obtained by searches and seizures in violation of the Constitution is inadmissible
Who does the 4th protect?
Protects PEOPLE not Places
Two Prong- Expectation of Privacy Test (need both)
- Person exhibits an actual (subjective) expectation of privacy
- The expectation is one that society (objective) is prepared to recognize as “Reasonable”
” False Friend Doctrine”
you assume the risk
Pen Register
- Minimal information - just numbers
2. 3rd Party Rule - assumption of the risk
Dog Sniff
- thing they detect is contraband
- no privacy issue
Limited information
Open fields
No reasonable expectation of privacy
Curtilage - Four Factors
- Proximity of the area to the home
- Area included in an enclosure surrounding the home
- Nature of the uses of the area
- Steps taken to protect the area from observation
EXAM THOUGHTS:
1) What is the normative value of privacy?
2) What can we reasonably expect to be private?
3) Drones?
4) Facial Recognition?
Thermal Imager
Gained info about the interior of a home w/ technology that could not be obtained w/o physical intrusion into a constitutionally protected area = a search
Driving in public
No reasonable expectation of privacy in movements when driving an automobile on public thoroughfare
Trespass and 4th
Expectation of privacy test is in addition to trespass grounds not replacing it
2 Kinds of Seizures
1) Person
2) Property
Seizure Rule
to be a seizure of property there must be a meaningful interference w/ an individual’s possessory interest in that property
Seizable Evidence -: only 4 things can be seized w/ PC to believe is criminal evidence
1) Contraband - things that may not be lawfully possessed by a private party
2) Fruits of a crime
3) Instrumentalities of a crime
4) Mere evidence - item of value b/c it will help the police in apprehension or conviction of a person for an offense
Seizure of a Person
Occurs when the officer by means
of physical force or
show of authority
has in some way restrained the liberty of a citizen
Probable Cause
It exists where
- facts and circumstances w/in the officer’s knowledge
- reasonably TRUSTWORTHY information
… sufficient to warrant a man of reasonable caution in the belief that an offense
… has been committed or is being committed
PC Test
1) New Test / RULE
Totality of Circumstances
- Given all of the circumstances set forth in the affidavit before him including
(Credibility or Reliability)
- the veracity and
- basis of knowledge of persons supplying the hearsay information,
– there is a fair probability that the contraband or evidence of a crime will be found in a particular place
Arrest in Public
Public Warrantless arrests are OK
When Can you go into a home to make a warrantless arrest?
- You can’t go into a home to make an arrest w/o a warrant
- 3rd party’s house to find the suspect and use the arrest warrant = Need a search warrant
Warrant Exception - Exigency
1) “Hot Pursuit” - prevent escape
2) Imminent Destruction of Evidence
3) Risk of Danger to police or other persons
Invalid arrests effect on the prosecution ?
None
Knock + Announce
Implicit in the reasonableness clause required under the 4th BUT not every search needs this to be reasonable
-Time required to come in after knock 15-20 seconds
( avoid violence, protect property, privacy, dignity)
Search Warrant needs ..to be approved ..[Elements]
- By a neutral detached magistrate and must describe with particularity the place to be searched and the things to be seized
- supported by oath or affirmation
Warrant Exception - Search Incident to Lawful Arrest
Can search the Person + Immediate Area w/in his immediate control (automatic)
Warrant Exception - Special Circumstances
Inventory -Police can do a warrantless Inventory search at station after arrest
Community Caretaking - protect people
Warrant Exception - Plain View
1) Lawfully where were when they viewed the evidence
2) Immediately recognizable as seizeable (incriminating)
3) Lawful right to physically access the object
Warrant Exception - Automobile
Or
Automobile exception
Search car Incident to Arrest only if the arrestee
1) w/in REACHING DISTANCE of passenger compartment at the time of the search
~or~
2) it’s reasonable to believe the vehicle contains evidence of the offense of the arrest
//
W/ pc can search whole car bc it’s readily mobile and low expectation of privacy
Warrant Exception - Consent
OK waived privacy
a) Must be freely given w/o duress or coercion
b) NO right to know that you can refuse
c) Can limit search
d) Can stop search
Passenger Containers Search
Can search passenger containers in cars if capable of holding the evidence w/ PC
Who Can consent?
1) Authority
2) Apparent Authority - Based on the REASONABLE belief of the cop at the scene w/ available facts at the time of the search that the person granting consent had the authority to do so
