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