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Criminal Procedure > Search and Seizure > Flashcards

Search and Seizure Flashcards

1
Q

Three questions to ask when you see a search or seizure

A
  1. Does the 4th Amendment apply?
  2. If so, was the search or seizure proper under the 4th Amendment?
  3. If not, is evidence obtained in violation of the 4th Amendment admissible anyway?
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2
Q

The 4th Amendment applies to:

A
  1. searches or seizures,
  2. conducted by government agents,
  3. in areas where the complaining individual has a reasonable expectation of privacy
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3
Q

When does a search or seizure occur?

A

When a government agent physically intrudes on a constitutionally protected area in order to obtain information

OR

violates an individual’s objective (reasonable) and subjective (actual) expectation of privacy.

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4
Q

Where is there a reasonable expectation of privacy?

A
  1. generally, in one’s home and in the curtilage surrounding one’s home
  2. in one’s effects or personal property (ex: purse)
  3. in public areas that have been set aside to ensure privacy (ex: public restroom or phone booth)
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5
Q

When is there no reasonable expectation of privacy?

A

A person has no reasonable expectation of privacy in things that are held out to the public. When there things are search or seized, the 4th Amendment does not apply. Examples Include:

  1. anything that can bee seen lawfully by the public
  2. a person’s voice, handwriting, fingerprints, or appearance
  3. account information available to a bank or cell phone company
  4. info gathered from a public air space or in an open field
  5. Paint scrapings from a car
  6. abandoned property (ex: garbage left at the curb)
  7. smells detected from outside of a car or luggage at a public airport
  8. anything that can be seen or detected with devices regularly available to the public (ex: binoculars, flashlights)
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6
Q

When does a person have standing to raise a 4th Amendment challenge?

A

If they had an expectation of privacy in the thing searched or seized

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7
Q

Who does not have a reasonable expectation of privacy?

A
  1. An individual who uses a residence for business only
  2. an individual who stores an item in an area in which he has no reasonable expectation of privacy (ex: drugs hidden in gf’s purse)
  3. as to a search of the car itself, “mere passengers”
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8
Q

Who is a Government Agent?

A
  1. Police Officers
  2. Private citizens following police direction
  3. public school administrators (like principals)
  4. security personnel deputized with the power to arrest
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9
Q

When does a search and seizure satisfy the 4th Amendment?

A

if it is properly conducted pursuant to a valid warrant

OR

if an exception to the warrant requirement applies

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10
Q

When is a warrant valid?

A
  1. if it is issued by an unbiased magistrate - neutral and detached - no fee paid for the warrant

AND is supported by:

  1. probable cause - based on the facts and circumstances within the officer’s knowledge, a reasonable officer would conclude than an individual has committed a crime
  2. particularly - the warrant is specific about the people or places to be searched or items to be seized
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11
Q

Can an informant provide probable cause?

A

Yes, if the totality of the circumstances suggests that the tip is reliable.

The court will consider:

  1. the reliability of the information
  2. the nature of the informant’s info, and
  3. the reasonableness of the suspicion in light of those factors
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12
Q

What is required for a wiretap warrant to be valid?

A

It must:

  1. be supported by probable cause and particularity
  2. name the persons whose conversations are covered by the warrant, and
  3. be of a limited duration
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13
Q

Unreliable Ear Doctrine

A

A person assumes the risk that anyone that they speak to is recording their speech. One has no expectation of privacy in the words they speak.

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14
Q

How does a Government Agent properly execute a warrant?

A

By complying with its terms and following the “knock and account” rule

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15
Q

Knock and Announce Rule

A

Officers must:

  • announce their presence and intention, and
  • wait a reasonable amount of time for occupants to answer before searching the premises
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16
Q

Does a failure to knock and announce trigger an exclusionary rule?

A

No, it makes no difference in terms of what evidence is brought into court whether the agents knock and announce or not

Note: “Inevitable discovery” doctrine in Michigan

Note: officers are not required to “knock and announce” if doing so is unreasonable (it would be dangerous or result in evidence destruction)

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17
Q

When does an arrest occur?

A

When a suspect submits to policy custody

(this can be voluntary or involuntary)

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18
Q

May police arrest suspects of all crimes, even those that don’t require jail time?

A

Yes

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19
Q

When is an arrest warrant not required?

A

To:

  1. arrest someone in a public place,
  2. arrest someone a police officer witnesses committing a crime, or
  3. arrest all occupants of a car when, during a traffic stop, a police officers discovers evidence of a crime that suggests a common criminal enterprise
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20
Q

When is an arrest warrant required?

A

To:

  1. arrest a suspect in their home
  2. arrest a suspect if the suspect is in someone else’s home (a search warrant is required too)

Exception: hot pursuit of suspect or imminent destruction of evidence

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21
Q

Protective Sweep Doctrine

A

Officers can search the area immediately surrounding the arrested person

OR

If searching beyond the immediate area: officers need reasonable suspicion, based on specific and articulable facts, that the adjacent room harbors someone who poses a danger to those in the arrest scene

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22
Q

Three methods to satisfy the 4th Amendment

A
  1. Valid warrant + proper execution
  2. good faith or reasonable mistake by officer saves it
  3. exception exists ( A SPACE)
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23
Q

When does good faith not save a defective warrant?

A
  1. serious affidavit issues
  2. serious warrant issue
  3. serious magistrate issue
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24
Q

What is a serious affidavit issue?

A
  • if the affidavit supporting probably cause is so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable

OR

  • It is based on lies:
    • a false statement made by an officer,
    • the statement was made knowingly, intentionally, or with reckless disregard for the truth, and
    • the false statement was necessary to the probably cause finding
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25
Q

Define: Serious Warrant Issue

A

the warrant is so facially deficient in particularity that the executing officers could not reasonable presume it to be valid.

26
Q

Define: Serious Magistrate Issue

A

the magistrate abandoned their neutral position

27
Q

Exceptions to Warrant Requirement

A
  1. Automobile Exception
  2. Search Incident to arrest
  3. Plain View
  4. Administrative Search
  5. Consent
  6. Emergency Circumstances
  7. Terry Stop and Frisk
28
Q

Consent Exception

A

If one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas which they understand the consent to extend without a warrant (and without probable cause)

29
Q

Who can/cannot give consent to a warranty exception?

A
  1. Children cannot give consent
  2. Adults can give consent to search a child’s room but not locked areas
  3. Landlords, hotel proprietors, and employers cannot given consent to search private areas (occupied apartments/hotel rooms)
  4. Cotenants can give consent over areas which they have co-tenancy, but other tenants who are present can revoke consent
30
Q

Plain View Exception

A

An officer who is lawfully present in the area that he is in may seize an item if it is “immediately apparent that the item is contraband or evidence of a crime”

Note: this extends to other senses too, plain smell, plain feel also included

31
Q

Exigent Circumstances Doctrine/ Hot Pursuit Exception

A

Comes up in cases of:

  1. Hot Pursuit
    1. Police may follow a suspect onto private property without a warrant and detain them only if there is probably cause to believe they committed a crime and that they are in that particular place
  2. Emergency
    1. if officers must enter private property to treat or prevent serious injury, no warrant is needed
  3. Evidence will disappear
    1. no warrant is required if evidence of a crime will likely disappear before a warrant can be obtained
32
Q

Search incident to lawful arrest exception

A

In order to keep an officer safe and to preserve evidence:

  1. at the time of a lawful arrest,
  2. an officer may conduct certain searches of the arrestee
  3. without a warrant
33
Q

Search incident to lawful arrest exception - arrestee is in a vehicle

A

If the arrestee is unsecured: the officer can search the interior cabin, including closed containers, but not the trunk. This is regardless of whether or not the officer has reason to believe that they will find evidence of the crime for which he arrested the suspect

If the arrestee is secured: once secured (like by handcuffs), the officer can only search the vehicle if it is reasonable to believe it contains evidence of the crime for which the suspect was arrested

34
Q

Automobile/Vehicle Exception

A
  • Because vehicles are highly mobile and the expectation of privacy in them is lower, officers can search a vehicle any time they have probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within.
  • Search may be conducted anywhere in the vehicle where evidence could reasonably be found, including the trunk and closed containers (but if looking for a gun cannot look in a pill bottle since it could not possibly be in there)
35
Q

Administrative Search - Generally

A
  • Officers, government employees and public school officials may conduct certain searched without a warrant.
    • The standard for these searches is solely not of reasonableness
    • Must be conducted according to neutral criteria
    • Must not be conducted for the purpose of investigation
36
Q

Administrative Search - Arrestees and Impounded Vehicles

A

Police are allowed to search arrestees who are booked into jail and impounded vehicles without a warrant, provided that:

  1. the search is governed by, and complies with, reasonable departmental protocols, and
  2. the search is not a pretense to search for additional evidence of a crime - search must be motivated by officer safety or responsibility to safeguard a vehicle owner’s possessions
37
Q

Administrative Search - Parolees

A

As a condition of parole, parolees agree to warrantless searches of their person and home for any reason or no reason at all.

38
Q

Administrative Search - Caretaker Exception

A

Police may search items given to them to care for

Ex: woman finds a bag on the street, turns it into the police

39
Q

Administrative Search - border searches

A

Persons seeking to cross the U.S border are subject to questioning and searches for any reason or no reason at all.

Extremely invasive searches may require some suspicion

A border inspection can include disassembling a vehicle

Security screenings at the airport are permitted under this exception

40
Q

Administrative Search - Public School Searches

A
  • Public school officials may search students and their personal effects upon reasonable suspicion
  • Reasonable suspicion exists when there is a moderate chance of finding evidence of wrongdoing
  • The search must not be overly intrusive in light of the age and sex of the student (ex: cannot strip search a female student suspected of having ibuprofen)
41
Q

Administrative Search - vehicles encountering an informational roadblock or sobriety checkpoint

A

Police may stop cars at a roadblock in order to ascertain information about a serious crime, provided that:

  1. the checkpoints are narrowly tailored to the investigative purpose,
  2. stops are brief and systematic, not arbitrary, and
  3. interrogations are specific to the crime about which information is sought.

Note: MI does not allow sobriety checks

42
Q

Administrative Search - random drug testing

A

The administrative search exception also sanctions random drug testing of:

  1. public school children involved in any extracurricular activity
  2. Customs agents who carry firearms
  3. Customs agents who are involved in drug interdiction
  4. Railroad workers involved in an accident or who violate safety rules
43
Q

Terry Stop Standard of Reasonable Suspicion

A
  • The officer needs reasonable suspicion that criminal activity is afoot
  • A brief seizure: Can only stop the person briefly
44
Q

Terry Frisk Standard of Reasonableness

A
  • The officer needs a reasonable belief that the suspect is armed and dangerous
  • The officer may only frisk for weapons
45
Q

When is a person seized

A

When a reasonable person would believe she was not free to leave or refuse to answer the officer’s questions

46
Q

When does reasonable suspicion exist?

A
  • When a reasonable person would believe, based on specific and articulable facts (not just a hunch), that criminal activity is present.
  • It is a lesser standard than probable cause - even if the officer makes a reasonable mistake of law, the officer’s stop will be upheld
47
Q

What is permissible with a Terry Car Stop?

A
  1. police may order all occupants out of the car
  2. police may also conduct a dog to sniff for drugs, provided that that the snuff does not prolong the stop loader than the time reasonable required to complete the mission of issuing a ticket
  3. the driver and any passenger have standing to challenge a traffic stop which constitutes a seizure of all of them for 4th Amendment purposes
48
Q

When does a stop become more of an arrest?

A

Factors to consider:

  • what was the degree of intrusion
  • what was the amount of force
  • how long was the suspect stopped
49
Q

What is a Terry frisk?

A

A pat down of a suspect’s body and clothing justified by officer’s safety based on an officer’s reasonable suspicion that the suspect is armed and dangerous

50
Q

What factors can create a reasonable suspicion that someone is armed and dangerous?

A
  • the suspect is believed to be involved in a crime involving a weapon or the trafficking of large amounts of drugs
  • the suspect acts aggressive
  • there is a bulge under the suspect’s clothing that could be a weapon
  • the suspect is present in a high crime neighborhood (this must be combined with other factors)
51
Q

Car Terry Frisks

A

If, during a routine traffic stop, an officer reasonably believes a suspect is armed and dangerous, they may search the interior of the vehicle for weapons that would be accessible to the driver, including those in closed containers.

52
Q

Exclusionary Rule - Direct Evidence

A

The exclusionary rule makes both physical and testimonial evidence obtained in deliberate, reckless, or grossly negligent violation of the 4th Amendment inadmissible agains the person whose rights were violated

53
Q

Exclusionary Rule - Indirect evidence (Fruit of the poisonous tree doctrine)

A

Evidence that directly or indirectly derives from illegally obtained information is excluded from the prosecutor’s case-in-chief under this doctrine.

54
Q

Exceptions to the Exclusionary Rule - Inevitable Discovery

A
  • Evidence initially discovered through an unlawful search, but that would have been discovered by lawful means is admissible
  • Note: this is a high standard, it must be true that the evidence would necessarily have been discovered by other, lawful means
55
Q

Exceptions to the Exclusionary Rule - Independent Source

A

Evidence initially discovered during an unlawful search, but later obtained independently through activities untrained by the illegality is admissible

56
Q

Exceptions to the Exclusionary Rule - Taint Disappears

A

Evidence that is obtained after police misconduct or a violation of the 4th Amendment is still admissible if the connection between the misconduct and the evidence has become sufficiently attenuated, either by the passage of time or other intervening circumstances, to dissipate the taint.

57
Q

Limitation on the Exclusionary Rule (when it does not simply apply at all) - Standing

A

Where the person who is trying to suppress the evidence does not have standing to challenge the search. Only victims of the actual violation can challenge it.

58
Q

Limitation on the Exclusionary Rule (when it does not simply apply at all) - Impeachment

A

When the exclusionary rule prevents the prosecution from using evidence in its case-in-chief, evidence can still be used to impeach the D’s testimony

59
Q

Limitation on the Exclusionary Rule (when it does not simply apply at all) - Civil and other Proceedings

A
  • Includes grand juries, deportation hearings, parole renovation hearings, civil actions by the IRS or proceedings for violation of internal agency rules or state law
  • Any unconstitutionally obtained piece of evidence can be used in one of these proceedings
60
Q

Limitation on the Exclusionary Rule (when it does not simply apply at all) - Knock and Announce Rule

A

Violations of this rule will not result in the exclusion of evidence.

61
Q

Limitation on the Exclusionary Rule (when it does not simply apply at all)

A
  • Standing
  • Impeachment
  • Civil and other proceedings
  • Knock and Announce rule

Criminal Procedure (5 decks)

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