Pg 15 Flashcards
What are the different exceptions to a warrant?
TINA BASHES I.E. PACE: – third-party consent – inspections and regulatory searches *** N: no "n" – administrative search
– border search – automobile exception - search incident to lawful arrest – hot pursuit or evanescence evidence – exigent circumstances – stop and frisk
– post arrest inventory search
– emergency aid doctrine
– plain view doctrine
- arrest in public
– consent
– entrapment
What does an exception to the warrant requirement mean?
This dispenses with the need for a warrant
What is involved in a search incident to lawful arrest?
Police are permitted to do an automatic contemporaneous search of the person arrested in the areas within his immediate control.
What are considered to be the areas in a person’s immediate control for search incident to lawful arrest?
Anything within lunging distance so the person can get possession of a weapon or destroy evidence
What is the rationale for search incident to lawful arrest?
It is based on the protection of police and preservation of evidence
At what point are police permitted to do a search incident to lawful arrest?
Immediately after a lawful arrest. It is done because of or in connection with an arrest, not to find evidence of the crime or contraband
Basically what does SITLA allow a police officer to do?
If the defendant is carrying something or there’s something right next to him, the police can search it
When is SITLA triggered?
By lawful arrest based on probable cause
If an arresting offence is very minor, is SITLA still allowed?
Yes
What are the areas that a police officer can search without probable cause in relation to SITLA?
Any area that the defendant had access to right before the arrest and at the time of the search.
What are areas that would not be allowed to be searched under SITLA?
The rooms besides the one that the defendant is in or any closed or concealed areas of the room itself
What are areas that can be searched under SITLA?
Closets or spaces immediately adjoining the place of arrest where an attack could be immediately launched from. Anywhere that the defendant could possibly presently reach
What are factors to consider for SITLA?
- is the defendant restrained?
– what is the position of the police officer, the defendant, and the place to be searched?
– is it easy or hard to get access to a container or an enclosure being searched? - how many police are present compared to the arrestees?
What is involved in the immediate control test for SITLA?
The geographic scope that is permitted to be searched is the area within the defendant’s immediate control at the moment of arrest (where he could get possession of a weapon or destroy evidence).
If an arrest is not reasonable, and the officer does SITLA, what happens?
SITLA is the invalid fruit of the poisonous tree
What is needed in order for an arrest to invalidate a search that is incident to it?
Lack of probable cause to arrest the person
If someone is arrested with probable cause under a statute that is later held to be unconstitutional, does that invalidate a SITLA that happened?
No
If the arrest is unlawful, what does that mean for any SITLA that accompanies it?
This is also unlawful
In order to search a house incident to arrest, where must the arrest happen?
Inside, not somewhere outside
If a person is arrested outside of their home but wants to go inside to get something, what does that mean for the police officer?
He has consent to enter the home, so anything that is found in plain view is seizable
If someone is arrested in a car, what are the things that can be searched incident to lawful arrest come?
Anything within the person’s wingspan. This includes the interior and everything in the car, but not the trunk
If a person is arrested by an open car trunk, and inside the trunk is a double locked locker that the cops think has drugs in it, if they take the locker, and the car, and federal agents unlock the locker and search without a warrant, is that lawful under SITLA?
No, because they should have taken the locker away from the scene where it would’ve been removed from any danger of the evidence being destroyed or weapons being gotten from it, and then they should’ve gotten a search warrant. Once they removed it from the scene, searching the locker was no longer incident to arrest
Is it possible to search containers that are found on a person such as their wallet or their purse incident to arrest?
Yes, if they are immediately associated with the person. But in all other instances, probable cause and a search warrant is needed when the police take an item into their exclusive control
If police arrest someone in their kitchen, what are the police entitled to do?
A protective sweep of the areas that are immediately connected to the kitchen.
They can do a protective sweep of the rest of the house only if the police have a specific or articulable basis to suspect there is a threat that necessitates a further search. A reasonably prudent officer must believe that the area harbours an individual that is posing danger to those on the scene. This would then allow a cursory inspection of ONLY the places that the person could be found
In order for the police to do a particularly invasive search, what is required?
There must be a strong belief that contraband is present. This requires a clear indication that evidence will be gotten
What is considered to be a particularly invasive search?
A search that breaks the skin or extends into body cavities
If the police resorted to having a proctoscopy done with a search warrant because there was evidence that the defendant had cocaine in his rectum, is that OK?
Even though this procedure is only slightly dangerous, it is super demeaning and intrusive, so it fails the compelling need test since other available avenues like an enema would be possible.
When prisoners enter general population, what can be done by the police to search them?
They can lift genitals, squat and cough naked, and basically deference is given to the police unless there’s substantial evidence that the response is exaggerated
When must a SITLA happen?
The search must be contemporaneous in time and place with the arrest period, although police can do SITLA of the effects of the arrestee even though the search isn’t substantially contemporaneous in time and location with the arrest, which could mean that the police take the person into custody and then several hours later search his pockets. Clothes are just effects in the suspect’s position that could’ve been searched at arrest, so the delay not change the lawfulness of the search.
What happens to evidence that is found during SITLA?
It is admissible against the defendant even if it is totally unrelated to the arrest
If you arrest someone inside a vehicle or beside a vehicle, what are the things that you can search incident to arrest?
Anything in the passenger compartment of the vehicle and the contents of containers that are found inside
What is the major rule for SITLA in relation to searching a car?
Search of the car can only happen when the person is unsecured and within reaching distance of the passenger compartment at the time of the search
When is SITLA of a car justified?
If it is reasonable to believe that evidence relevant to the crime of arrest can be found in the car.
What is a reason that motor vehicles have a lesser expectation of privacy?
Because they function as transportation and not a residence or a repository for personal effects. Plus they travel through public thoroughfares where the occupants and the contents are in plain view
Are motorhomes considered to be under the vehicle exception?
Yes, because they are used on highways, they are readily mobile, and they have a reduced privacy expectation since they are motor vehicles
If you find a cell phone in a vehicle, is that part of the vehicle exception?
No
If police pull over a car for traffic infractions as a pretext in order to do a search, is that allowed?
Yes, if the stop was made on enough evidence for a traffic violation. The subjective intent of the officers doesn’t count unless there was unlawful conduct. This is an objective test and the rest is lawful if there was probable cause that the law was violated and then a reasonable officer under the same circumstances could’ve stopped the car for some violation.
If police arrest someone and he asks to go change his clothes or to get clothes, can the police accompany him to another part of the house and inspect things inside that part including closets and drawers?
Yes
