Pg 9

Question 1

How do you approach a search and seizure essay?

Answer 1

1) Was there STATE ACTION?
2) Did the action violate the defendant’s REOP?
3) Was there a WARRANT?

Question 2

What are examples of people that would be considered to be acting as government agents?

Answer 2

• publicly paid police that are on or off duty
• private person acting at police direction
• privately paid police deputized with power to arrest people (such as campus police)

Question 3

On an essay, how do you determine if state action violated the defendant’s reasonable expectation of privacy?

Answer 3

Defendant must have standing through an intrusion on his justified expectation of privacy (meaning the defendant was the victim of a search or seizure, and not some other third-party)

Question 4

If the government uses sense enhancing technology that is not in general use, have they impinged on your reasonable expectation of privacy?

Answer 4

Yes

Question 5

What are things that are considered to be public items and that you have no right of privacy in?

Answer 5

– the sound of your voice
– your handwriting
– the paint on the outside of a car
– account records at a bank
– GPS on your car on public roads or in your driveway
– anything seen across an open field or flying in public air space
– odors coming from your luggage
– garbage that you set out for collection

Question 6

If a warrant is issued based on an invalid affidavit, what kind of things must be shown in order to invalidate the warrant?

Answer 6

– false statement in the affidavit by the affiant
- the affiant intentionally or recklessly included the false statement
– the false statement was material to probable cause

Question 7

Can the definition of a neutral and detached magistrate include a court clerk?

Answer 7

Yes

Question 8

What is needed for a warrant to be proper?

Answer 8

• it must be based on PC
  – precise
  – issued by a neutral and detached magistrate
  – relied on in good faith

Question 9

If a cop is executing a search warrant, can he detain people that are found on the premises?

Answer 9

Yes, but he cannot search those people that are present and not named in the warrant

Question 10

How do you determine if a warrant was properly executed?

Answer 10

• if it was done without a reasonable delay
  – after an announcement [unless there was a good reason not to]
  – the person or place to be searched or seized was within the scope of the warrant

Question 11

If there was no warrant for a search or seizure or the warrant wasn’t properly executed, what can you then look at on an essay?

Answer 11

Whether an exception applies

Question 12

What are exceptions that may apply so that a search or seizure can be done without a warrant?

Answer 12

CAPS - GEESH

– consent
– automobile
– plain view
– SITLA

– good faith defence for relying on a defective warrant
– evanescent evidence
– exigent circumstances
– stop and frisk
– hot pursuit

Question 13

What is a warrant?

Answer 13

Authorization by a judge for police to search or seize property.

Question 14

Why is there a strong preference for warrants?

Answer 14

Because they are orderly and they have judicial impartiality. They enhance complete police compliance with the fourth amendment and force police to stop, think, and articulate their reasons for intruding so they avoid unreasonable intrusions

Question 15

What do warrants essentially authorize?

Answer 15

Intrusions by police onto property [search warrant] or to liberty [arrest warrant]

Question 16

A warrant cannot issue unless what?

Answer 16

– there is PC
– there’s an oath or affirmation
– the warrant particularly describes the person or things to be searched or seized

Question 17

In order for the proper issuance of a warrant, what is required?

Answer 17

– a proper JUDICIAL officer
– is presented with SWORN statement of facts
– that is sufficiently RECENT
– from which he can conclude there is PC to believe:
* either there is evidence or SEIZABLE ITEMS that will be found at a specific place
* or a specific PERSON committed a specific crime for which he can be arrested

Question 18

A search or seizure that happens without a warrant is considered to be presumptively what?

Answer 18

Unreasonable, and the government has the burden of rebutting this presumption by showing it is reasonable

Question 19

What is the review process for a warrant?

Answer 19

When a trial judge reviews a magistrate’s decision about whether there was PC for a warrant, it is given substantial deference. So only when PC is clearly erroneous is a warrant held to be invalid. It is the duty of the reviewing court to ensure that the magistrate had a substantial basis to conclude that PC existed

Question 20

If cops do a search without a warrant and the defendant makes a motion to suppress the evidence that the cops got, what is the standard of review there?

Answer 20

It is de novo. The cop’s judgement is subject to de novo review and given no deference. Whereas if they had a warrant, the standard would’ve been substantial deference. That is why it is always smarter to get a warrant

Question 21

If it is a close call whether the government acted properly, what would usually happen if the government had a warrant compared to if they didn’t?

Answer 21

They will usually lose if they didn’t have a warrant and win if they did

Question 22

What is the timing for when a warrant must be executed?

Answer 22

This is usually set by the warrant, but federally it must be executed in 10 days and PC must exist when the warrant is executed

Question 23

What are different things that can serve as the timing for a search warrant?

Answer 23

– the warrant itself
– statutes for this [federally it gives 10 days]
– court rules
– fourth amendment which says there must be PC

Question 24

What is the time limit to execute an arrest warrant?

Answer 24

No time limit

Question 25

What is the consequence for executing a search warrant later than the timing allows?

Answer 25

It’s possible that the evidence will be excluded

Question 26

When is a warrant issued?

Answer 26

When the magistrate signs it

Question 27

What is a neutral and detached magistrate?

Answer 27

It doesn’t have to be a judge, but the person must be severed and disengage from activities of law-enforcement because he needs an independent judgement and must be capable of determining whether PC exists.

Question 28

What is the task that a magistrate has when deciding to issue a warrant?

Answer 28

He makes a practical, commonsense decision, whether, given all the circumstances in the affidavit, including veracity and basis of knowledge for those giving hearsay information, there is a fair probability that contraband or evidence of a crime or person will be found in a particular place. The magistrate needs a substantial basis to decide that PC exists

Question 29

If a police officer applies for a warrant that gets denied, then he goes to another magistrate, what is essential?

Answer 29

The cop must disclose the first application in order to alert the new magistrate about earlier developments and to lessen the potential for judge shopping

Question 30

If a foreign police search happens by a foreign police officer enforcing his own law through a search that doesn’t meet the fourth amendment in the United States, is that evidence subject to suppression?

Answer 30

No, because the idea is that foreign police do not need to be deterred

Question 31

What are the required elements for a warrant?

Answer 31

• specificity: describe the place to be searched or the thing to be seized with particularity
  – issued by a neutral and detached magistrate
  – probable cause to believe that the fruits, instrumentalities, or evidence of crime can be found at the place to be searched

Question 32

What is required for PC for a warrant?

Answer 32

A belief that specific items can be seized and that those items will be found at a specific place

Question 33

How do you know that a warrant didn’t have PC?

Answer 33

If no reasonable officer could have read the warrant application and concluded that it made out PC

Question 34

What is required for a warrant to be defective?

Answer 34

Bad faith

Question 35

What is required for nexus for a warrant?

Answer 35

There must be a connection between the place to be searched and what is sought or some reason to believe that items to be seized will be found at the place to be searched