Pg 7 Flashcards
What are the things that a police officer cannot use as a base for making a routine or spontaneous law enforcement decision such as a traffic stop?
- race – ethnicity - gender – national origin – religion – sexual orientation – gender identity
*** These can only be used if the police officer is using a suspect description
What are the elements that trigger the fourth amendment?
- person: the object of the search must be a person
– state action
– search or seizure
– excessive force
What is the definition of “person“ as an element that triggers the fourth amendment?
Someone with a meaningful connection to the United States. Citizens and aliens that are voluntarily, even if illegally, in the US
What is considered to be state action as an element of the fourth amendment?
There must be conduct by a government actor or an agent for the government.
What do you consider when determining if a private person is a state actor?
Totality of the circumstances:
- motive
– compensation or benefit from the government
– advice or direction from the government
What is a seizure under the fourth amendment?
Government action that results in meaningful interference with the possessory interest of another
What is probable cause?
Trustworthy facts or knowledge that are sufficient for a reasonable person to believe the suspect committed or is committing a crime.
Is probable cause needed in order to get a warrant?
Yes
How is probable cause determined?
Based on the totality of the circumstances:
- veracity
– basis of knowledge of the person supplying the information
– fair probability that contraband or evidence of the crime will be found in a particular place
If a search or seizure is not based on probable cause, then what?
It is unreasonable and violates the fourth amendment
What is required on behalf of the magistrate in order to conclude that probable cause exists?
Substantial basis. There must be the time, crime, objects, place, and a sufficient nexus between the criminal activity and the thing to be seized or the place to be searched
Is probable cause also required for warrantless arrests and searches?
Yes
What is the purpose of probable cause?
The constitution provides the basis for a restriction on the power of the government to invade someone’s home, person, or effects
What is the standard that applies to probable cause?
Objective “Plus” standard
What is the objective plus standard?
The facts must warrant a belief by a reasonable person that the suspect committed a crime he could be arrested for or that evidence may be found that is seizable because it is connected with criminal activity.
The expertise and experience of the police officers is taken into account because some cops can identify illegal substances just from smell, feel, or sight.
When is a situation that an experienced cop can be held not to have probable cause?
If someone of his special skills should have recognized no criminal conduct was involved
What are factors from which probable cause can be gleaned?
- eyewitness reports
- forensic evidence
- suspect’s admission
- trustworthy hearsay information
Can information that wouldn’t be allowed at trial because of hearsay be used to show probable cause?
Yes, such as a defendant’s criminal record
If a description fits a large number of people, or a pattern of events happens just as frequently in innocent transactions, is that enough for probable cause?
No
If a legal provision later becomes unconstitutional, does that defeat the probable cause?
No, because cops enforce laws until they are declared unconstitutional
If a person refuses to consent to a search, is that enough for probable cause?
No
What is a Gerstein hearing?
If you arrest a suspect without a warrant, the suspect must be promptly brought before a magistrate to validate probable cause for the arrest. This must happen within 48 hours unless there’s an exceptional circumstance.
If a Gerstein hearing ends up having a delay due to something like transferring the person to another facility or a late night booking or no magistrate is available, is that OK?
Yes as long as the government can show a bona fide emergency or an extraordinary circumstance
What is the special needs doctrine?
These things are considered to be so intrusive that they require more than the usual probable cause:
- eavesdropping
- wire tapping
- searching a home at night
- intrusions into the body
What is an informant?
Someone that learns of criminal conduct by being part of the criminal milieu
What are the elements of probable cause?
- basis of knowledge
– veracity
– timing
– totality of the circumstances factors
What is involved in the element of probable cause that calls for “basis of knowledge“?
Explanation of how the informant got the information. Did he personally see it, was it hearsay with a good reason to believe it, can it be assumed because of the wealth of detail given, or did the person have reliable information?
What do you have to ask under the element of “basis of knowledge“ for probable cause?
Is the information complete and specific enough to be probable cause? The more detail the better. Because detail shows personal knowledge or inside information and not just that the other person is repeating a rumour or conjecture. Personal observation is the best.
If someone is relating information from another person, can that be considered to meet the element for basis of knowledge for probable cause?
Not alone, you need further inquiry into the reliability of the other person
What is involved in the element of veracity for probable cause?
Sufficient facts to determine the inherent credibility of the informant and the reliability of the information on that occasion
Is it possible to consider an informant’s past performance in order to determine the veracity for probable cause?
Yes. If the informant’s past performance led to convictions, the person implicates himself in the crime, or makes an unequivocal admission, then veracity can be proven.
If you get information from the victim or a witness, how does the element of veracity work for probable cause?
Veracity is assumed unless the person is unwilling to identify themselves
What is corroboration as a thing to consider under veracity for probable cause?
If an agent does surveillance and verifies the information, that gives him reasonable grounds to believe that the rest is true, so that would be sufficient for a reasonable suspicion for the cops to make an investigatory stop
If a magistrate isn’t sure if a cop’s recitation of what he was told was truthful, or doubts the credibility of an informant, what can he do to determine if there’s probable cause for a warrant or other action?
He can require that the informant be identified or produced. If the informant is anonymous, the judge can do an in camera inquiry where the prosecution makes the informant available to do an interrogation by the judge, but the defendant and the other counsel cannot come.
When is a confidential informant considered to be reliable for probable cause?
- if he correctly predicts the future
- if he puts his anonymity at risk
– if he has given information that was right before
What are situations when the person would not be held to have veracity for probable cause?
- if a tip from an unknown informant gives no predictive information
– if there’s no way to verify knowledge or credibility
If a cop got a tip about a black youth at a bus stop with a gun, would that provide veracity?
No, describing what is already there is no good because there’s nothing objective for the judge to understand what the cops were suspicious about.
Are police officers allowed to do investigative stops for drunk drivers?
- Majority: these are OK when the cops didn’t personally witness traffic violations because of the serious danger of drunk driving, which allows an invasive seizure
– Minority: the cop must confirm a tip through independent observations first
If a cop gets information from fellow officers or a police bulletin, is that enough for probable cause?
Yes, cops can act and communication through official channels, and if it turns out that there was no PC, the arresting officer is not in trouble
What is a tricky situation for figuring out if probable cause is present?
If a cop made a flyer, he needed to have a reasonable suspicion, so even if a cop relied in good faith on it, the fourth amendment would be violated if the original person didn’t have proper reasonable suspicion
Con furtive gestures or concealing attempts provide probable cause?
Yes
