Pg 12

Question 1

What are the elements for a search?

Answer 1

– Defendant must have a subjective expectation of privacy
– society must recognize the expectation as legitimate
– there must be state action that invades the REOP

Question 2

How do you approach a search on an essay?

Answer 2

First find state action and reasonable expectation of privacy, then ask if there’s a valid warrant, and if there isn’t, see if an exception applies

Question 3

What is the element for a search that requires that the defendant have a subjective expectation of privacy?

Answer 3

The person must have shielded his thing from the public. This could mean putting it in a backpack or closing a door to a bathroom stall

Question 4

What is the element for a search that requires that society recognize the expectation as legitimate?

Answer 4

Anything that is exposed to the public is not within a reasonable expectation of privacy. But there is privacy in a bathroom stall, or in a tent on a campsite

Question 5

If police looked for the defendant and they saw him on the street, is that considered to be a search?

Answer 5

No, because he was in a public area

Question 6

If police are searching for a defendant and they go into his hotel room without a warrant, is that considered to be a search?

Answer 6

Yes, because they intruded on his reasonable expectation of privacy

Question 7

What are the subjective and objective elements for a search for REOP?

Answer 7

– subjective: is what the defendant does or believes because he shielded his thing or person from the public
– objective: is whether society recognizes the expectation as legitimate

Question 8

What is the camera balancing test for whether state action has invaded a person’s REOP?

Answer 8

The need to search is weighed against the invasion that the search entails

Question 9

What is the open fields doctrine for a search?

Answer 9

If cops enter or examine the field, there is no fourth amendment implication because the fourth protects people in their persons, houses, papers, and effects, but it doesn’t extend to open fields, which have no reasonable expectation of privacy.

Question 10

If police officers open a shed in a field, does the open fields doctrine apply to allow this?

Answer 10

No, because the open fields doctrine allows you to look at an open field, but not something on that field that has been shielded from view

Question 11

What is included in the open fields doctrine?

Answer 11

Areas that are outside the curtilage of the home and in plain view

Question 12

If there is a barbed wire fence with signs that say “no trespassing,” does that prohibit the open fields doctrine from applying?

Answer 12

No, because the person must take steps to protect the property from VISUAL inspection, not just physical entry if you want a privacy interest that is protected from entry

Question 13

If cars are parked in a parking lot, and police match the tire tread with tracks at a crime scene, is the tire match considered to be a search?

Answer 13

No

Question 14

Is the interior of a car subject to fourth protections?

Answer 14

Yes

Question 15

If a police officer stops someone for a traffic violation and he opens the car door and reaches inside to move papers that are blocking the VIN number, has he done a search?

Answer 15

Yes

Question 16

What is the protection for luggage when it comes to a search?

Answer 16

The outside of luggage is always exposed to the public, so that is not a search, but looking inside luggage is

Question 17

Is a dog-sniff considered to be a search?

Answer 17

No, because dogs just identify drugs and people have no REOP in contraband. Dogs don’t intrude inside a package, they just pick up odors that are emanating from it.

If a person is stopped and waits an unreasonable time for a dog search, that could be a seizure and the same is true if the cops hold luggage for an unreasonable time.

Question 18

Can police order someone to roll up his windows and turn on his heater or air conditioning while a drug dog walks around and sniffs the air that is being forced out of the seams of a car?

Answer 18

Yes.

Question 19

If there is ever an argument about the trustworthiness of a police dog’s performance, what do you need?

Answer 19

If the dog was trained with a bona fide organization and they tested him in a controlled setting, the court can presume that there was PC from the dog sniff.

The defendant can contest the program by arguing that the standards were too lax or the methods were faulty. He could also look at how the dog or handler performed in a specific situation, or consider the dog or handler’s history in the field

Question 20

If police use a high-tech device to do something like penetrate the walls of a home, is that considered to be a search?

Answer 20

Yes, because it allows them to see an area that is protected from the public eye.

Question 21

If police use a listening device outside of a home to hear what is happening inside, is that a search?

Answer 21

Yes, because it allows them to hear inside and they couldn’t do that with a naked ear

Question 22

Can police put a tracker in a bottle of chloroform to track the buyer’s movement on a public road?

Answer 22

Yes, that is not considered to be a search, but if the police continue to monitor the beeper once it is in a home, that is a search

Question 23

What place gets the most protection under the fourth amendment?

Answer 23

The home. So any surveillance there is likely to be a search

Question 24

Can police stand outside of a home and see how quickly snow melts after a snowstorm, or subpoena utility bills without it being considered a search?

Answer 24

Yes

Question 25

Do records at a bank, phone company, utility company, or accountant have a reasonable expectation of privacy?

Answer 25

No

Question 26

What is data mining?

Answer 26

When the government aggregates data points that are collected from places like cooperating states, individuals, the private sector, and then they mine this information to find patterns or relationships that they couldn’t find otherwise.

Question 27

Is data mining subject to the fourth amendment?

Answer 27

No, because of the third-party doctrine which says that the fourth doesn’t forbid getting information revealed to a third-party and conveyed by them to the government

Question 28

What is a false friend?

Answer 28

When private information is given to someone that then gives it to the police

Question 29

If information is given to the police from a “false friend“ is that considered to be a search?

Answer 29

No, because the defendant assumed the risk

Question 30

Is it possible for police to do suspicionless searches on parolees?

Answer 30

Yes, as long as they are not arbitrary, capricious, or harassing according to a totality of the circumstances. Parolees have fewer expectations of privacy than free people do because their release from prison occurred before they completed their sentence

Question 31

What is a seizure?

Answer 31

The laying on of hands or application of physical force to restrain the movement of someone, even if the restraint is unsuccessful, or a show of authority that is followed by submission

Question 32

What are some things that police cannot seize?

Answer 32

Personal diaries, letters, writings, or recordings for the sole purpose of private use or communication of a personal or confidential relations

Question 33

Can objects that are found in public be seized by police without a warrant?

Answer 33

Yes

Question 34

If the police show authority but a person does not stop, is that considered to be a seizure?

Answer 34

No

Question 35

If in view of all the circumstances, a reasonable person would have felt free to decline a police officer’s request or to terminate an encounter, is that a seizure?

Answer 35

No

Question 36

If a police officer yells “freeze“ and the suspect does, is that a seizure?

Answer 36

Yes

Question 37

If police authority doesn’t terminate a suspect’s movement and the police have no physical control over him, is that a seizure?

Answer 37

No

Question 38

If a police officer grabs a suspect and then he breaks free and runs away, is he still considered to be seized?

Answer 38

No

Question 39

Is it necessary that an offence be committed by the defendant in front of the police officer in order for a seizure to occur?

Answer 39

No

Question 40

If a seizure is indistinguishable from an arrest, what do the police need?

Answer 40

Probable cause

Question 41

Is it possible for police to detain someone and call it something other than an arrest if they do not have probable cause?

Answer 41

No

Question 42

Is a seizure considered to be a single act or a continuous act?

Answer 42

Single

Question 43

What is the standard to know whether a seizure has occurred?

Answer 43

A reasonable person in the suspect’s position would not have felt free to leave as a result of the police conduct

Question 44

If a person is already confined to something like a bus, plane, or assembly line at a factory, and the reason that he can’t leave has nothing to do with the police, what is the test to determine if a seizure has occurred?

Answer 44

If a reasonable person in that position would have felt free to terminate the police and counter

Question 45

What are the things that could possibly be seizures?

Answer 45

• the threatening presence of several officers
  – cop displaying a weapon or using an authoritative voice or tone
  – physically touching the suspect

Question 46

Is the subjective intent of a police officer relevant to determine whether a seizure has occurred?

Answer 46

Not unless the police officer told the suspect

Question 47

What is something that is likely not considered to be a seizure?

Answer 47

Being told by the police that you were free to leave

Question 48

What is the general duration of a seizure?

Answer 48

Reasonable suspicion only allows a seizure for the time necessary to exercise due diligence to confirm or dispel a suspicion

Question 49

If a seizure is done and the police are able to confirm their suspicions, what happens?

Answer 49

That confirmation blossoms into probable cause and the officer can then arrest the person

Question 50

If a seizure is done and the police are not able to confirm their suspicions, what happens?

Answer 50

The seizure must terminate

Question 51

When the defendant has been arrested can the police do a cursory inspection of other parts of the premises of his home?

Answer 51

Yes, but only to determine if accomplices are present

Question 52

What are things that a police officer cannot do during a seizure unless it is reasonable?

Answer 52

• use threat or force suggesting full arrest
• use a weapon
• handcuff the suspect
  – put them in a cop car

Question 53

Is it reasonable for the police to have their weapons drawn during a seizure?

Answer 53

Yes, if they got a report of an armed threat

Question 54

If you move a suspect, does that exceed the scope of your seizure?

Answer 54

Yes, for example if you had a suspect leave an airport concourse to a private room for an extended period, that is essentially an arrest, because it is more intrusive than necessary

Question 55

How do you determine if police have exceeded their scope while doing a seizure?

Answer 55

Ask if the cops have acted unreasonably

Question 56

If you subpoena someone to appear before a grand jury, is that considered to be a seizure?

Answer 56

No

Question 57

Are traffic stops considered to be seizures?

Answer 57

Yes

Question 58

What is the standard that is applied to seizures?

Answer 58

Reasonableness standard. This considers all of the facts and circumstances like the severity of the crime, the immediate threat to safety that the suspect poses, if he is resisting arrest, allows for police to make split-second decisions in high stress situations, the cop’s actions are objectively reasonable in light of the facts and circumstances and ignoring the police officer’s underlying intent or motive, etc.