Pg 8 Flashcards
What is involved in the element of probable cause for timing?
This looks at stale information and anticipatory warrants
What does it mean that information could be stale with regard to probable cause?
The information that is being relied on can go stale depending on the circumstances of each case. I.e.: a long delay between the facts for the warrant application and the issuance of the warrant can result in probable cause dissipating.
Why is it not possible for information to go stale for probable cause with regard to an arrest warrant?
Because if there was once a reason to arrest someone, there is always a reason, and time doesn’t change that
Is it possible to get a search warrant to search a hotel room for intoxicants three weeks later?
No, because that information would be stale
What is an anticipatory warrant?
A word that is based on evidence that WILL be located somewhere in the future. This is usually OK if there’s a fair probability that the evidence will be there on execution. The magistrate decides it is now probable/likely that contraband, evidence of crime, or a fugitive will be on the described premises when the warrant is executed
What is the test for anticipatory warrants?
There must be a fair probability that when the triggering condition happens the contraband or evidence will be found in a particular place and probable cause to believe that the triggering condition will occur
Federally, how long does a search warrant have before it becomes stale?
14 days
What is involved in the totality of the circumstances factors for probable cause?
- particularity of details: race, sex, age, height, hair, clothes, points of identification to single out someone from the general public
– size of the area: and the elapsed time to figure out distance
– number of people in the area
– direction of flight
– actions or conditions of the person: running or furtive behaviour
– person or vehicle involved in a similar crime previously
The more identifying characteristics there are, the more likely there is what?
Probable cause
Is it assumed that police will get a warrant before they do a search?
Yes
How is reasonableness involved in the fourth amendment?
Conviction cannot be brought via methods that would offend a sense of justice or shock the conscience. I.e.: if a guy swallowed pills and then cops made him puke them up. Police cannot use coercion or violence
Is it OK for a doctor to take a blood sample under the fourth amendment?
Yes, especially if he is checking for quickly dissipating blood alcohol levels. But this is a case by case analysis because if the police can reasonably get a warrant before doing the blood sample without significantly undermining the efficacy of the search, they must do that.
What is the ultimate key to the fourth amendment?
Reasonableness. Search or seizure by the government triggers a reasonableness requirement of the fourth amendment
How do you determine if the government acted reasonably with regard to the fourth amendment?
Balance the need to search/seize against the invasion that it entails
What is the question to ask regarding reasonableness for the fourth amendment?
If the facts that the police had at the moment of the search or seizure would warrant a man of reasonable caution to believe that the action was appropriate
What are protected areas in interest regarding the fourth amendment?
– colour of statute
– resisting arrest
– constitutionally protected areas
What does colour of statute mean with regard to the fourth amendment?
If you subject anyone under colour of statute to a deprivation of any constitutional right, you are liable, and an action for damages can be brought in federal court against the officer that violated the fourth amendment. That officer may have a defence that a reasonable person in their position would have a good faith belief that his conduct was lawful.
Do municipalities have immunity from liability for constitutional violations?
No
Is it ever OK for someone to resist arrest through force?
No, even if the arrest is unlawful. The defendant must submit peacefully and pursue remedies through the judicial process
What are constitutionally protected areas?
People, houses, papers, and effects. This includes things like your body or attire, an apartment, hotel rooms, garages, offices, stores, warehouses, letters, and cars
What does the fourth amendment protect?
People, but not places
If a person knowingly exposing something to the public is it protected by the fourth amendment?
No
If someone tries to preserve something as private even in an area that is accessible to the public, is that protected by the fourth amendment?
Yes
If FBI agents put a listening device on the outside of a phone booth and eavesdrop, and the defendant goes into the booth, shuts the door, and pays the toll, is he then entitled to assume that his words won’t be broadcast to the world?
Yes, because he tried to preserve his privacy. This includes things like a photo booth with the curtains closed
If there has been a police search that likely violated the fourth amendment, what should you ask?
If the defendant had an expectation of privacy that society accepts as objectively reasonable
If someone went in the photo booth and closed the curtain and then a police officer pulled the curtain back and saw the defendant doing heroin, then arrested him, and the police officer didn’t have probable cause to think that there would be contraband in the booth before he pulled the curtain, what happens?
The drugs can be suppressed
Is it possible to have a reasonable expectation of privacy in a public place?
Yes
For constitutionally protected areas, how does someone get privacy?
– the person must an exhibit actual or subjective expectation of privacy
– the expectation must be one society recognizes as reasonable
What is involved in knock and announce?
Police must announce their authority and their intent to enter a residence beforehand. They must make their presence known and wait for a response.
What is the reasoning behind knock and announce?
- protect the right of privacy in a dwelling by allowing peaceful surrender
- reduce the risk of violence
- avoid misunderstandings and the unnecessary destruction of property
If a police officer didn’t do knock and announce, does that mean that the evidence he finds gets excluded?
No
What are exceptions to the knock and announce rule?
If the police have reasonable suspicion that knocking announcing would be:
- dangerous to themselves or others, or
- would result in the destruction of evidence
- it would be a useless gesture or inhibit the effective investigation
then they do not have to do so.
When is a “no knock” warrant given?
When a magistrate allows entry without prior notice because of a sufficient showing of need.
When must knock and announce happen?
Before the police enter. It doesn’t count if it is done after opening the door
What amount of time do the police have to give an owner to respond to a knock and announce?
They must give the owner a reasonable opportunity to respond. The wait time depends on the type of dwelling, but generally it should be a minimum of 10 seconds
