Search and Seizure Flashcards
When is the use of a K-9 sniff around a home considered a search under the 4th amendment?
When the dog physically intrudes on the protected areas of the property (curtilage or inside); (LSB, ch. 5/VI)
Is it a “search” to use a K-9 to sniff a warehouse from a public street?
No (LSB, ch. 5/VI)
Is it a “search” to use K-9 to sniff around a vehicle on a public street?
No
Is it a “search” for a K-9 to sniff a storage locker from the public area of a storage facility?
No
Can a peace officer detain or seize an object in order to have a dog sniff it?
Yes as long as there is RS that the object contains drugs (LSB, ch. 5/VI)
True or false: the Ninth Circuit has held that using a K-9 to sniff a student at a public school is sufficiently intrusive to constitute a “search” under the 4th amendment?
True (LSB, ch. 5/VI)
What level of suspicion is provided when a police dog makes a “hit”?
Probable Cause to search
Is a search warrant needed to search a closed personal container inside an operable vehicle if probable cause exists?
No (‘automobile exception’)
If an adult or juvenile is on searchable probation, what authority does a peace officer have regarding searches?
He may search the person and any property under his control without any particularized suspicion AND without first contacting the probation officer (LSB, ch. 5/VII)
Does a probationer need to be present in order to search his belongings?
No, as long as he has search conditions
Is a PO required to contact the probation officer prior to searching a probationer?
No
Is it lawful to search areas jointly controlled by a probationer and his roommate even if the roommate is not on probation?
Yes, even if you intend to search for incriminating evidence on the roommate
Is it necessary for a parolee to be present in order to search his property or belongings?
No
Is a PO allowed to enter the residence of a parolee or probationer with search conditions in order to make an arrest?
Yes, as long as there is PC to arrest
During a probation search of a residence, peace officers may briefly detain others present in the residence for what purpose?
• to ascertain identity
• relationship to the probationer
• relationship to the probationer’s residence
During a probation or parole search of a residence, what areas are subject to search if the offender has cotenants?
Any areas that are shared can be searched, but areas controlled exclusively by a cotenant cannot be searched
In determining whether a particular object is within the scope of a search condition, what standard of proof is used?
Reasonable Suspicion
Must peace officers have prior knowledge of a probationer’s search conditions in order for the search to be lawful?
Yes
In order to search a parolee’s residence, must a peace officer have prior knowledge of the offender’s parole status?
Yes
If a probation search of a residence is conducted and an illegal firearm is found in the kitchen that turns out to belong to a cotenant, is the search lawful?
Yes, ‘area jointly controlled’
In conducting a probation search of a residence, how does a peace officer determine whether a particular object is “searchable”?
If there is reason to believe the object is under the control of the person subject to the search condition
True or false: PRCS offenders are subject to the same automatic search conditions as parolees?
True
If a passenger in a vehicle is a parolee or probationer with search conditions, are the passenger compartment and any containers subject to search even if they don’t belong to the offender?
Yes
Who monitors PRCS offenders?
County Probation Department
Are PRCS offenders on probation?
No, they are only monitored by the probation department
What are the three “N’s” required for an offender to qualify for PRCS?
Non-violent, non-serious,
non-P. C. 290
How is a peace officer to determine whether someone is on parole or PRCS?
They must have an “objectively reasonable belief”
Where can a peace officer find the search terms for mandatory supervision, probation, parole and PRCS?
In the Supervised Release File (SRF)
Can peace officers search electronic devices, such as a cell phone, of parolees and PRCS offenders?
Yes
Can peace officers search the electronic devices of probationers?
Yes, as long as they are an authorized possessor of the device AND the search conditions are unambiguous regarding electronic devices
If a private person makes an arrest and a peace officer believes there are insufficient grounds for the arrest, can he simply release the suspect without even a notice to appear?
Yes
If a private person searches a container of another person and finds contraband, can a peace officer then reopen the container without a warrant?
Yes, but they cannot go beyond what was apparent from the private search
True or false: an unreasonable search must be intentional, and not merely an accident?
True (LSB, ch. 2/I. A.)
If a peace officer ILLEGALLY detains a person and during that detention the person attacks the officer, is the person immune from prosecution?
No, he’s not immune from any crime committed during the detention
(LSB, ch. 2/I. B.)
Does an OWNER of a car almost always have a reasonable expectation of privacy in the car?
Yes
Can a thief object to a seizure or search of stolen goods or a stolen car?
No (LSB, ch. 2/I)
A nonconsensual search of a person requires what?
Probable Cause
In order to detain a person for officer safety reasons, does there also need to be suspicion of criminal activity?
No
Normally a search of a person in not permitted unless…?
1) consent;
2) parole, probation, PRCS, mandatory supervision;
3) pat down for weapons;
4) probable cause
In California, is a detainee required to identify himself to a peace officer?
No
According to the courts, can a detainee be arrested simply for refusing to identify himself?
No
When can a suspect be charged with 148 P. C. for refusing to identify himself?
Felony suspect being booked AT THE JAIL
Why is it not advisable to handcuff detainees as a matter of routine procedure?
Because the handcuffs could create a de facto arrest not based on probable cause
What kinds of situations are proper for handcuffing suspects without necessarily creating a de facto arrest?
High risk situations
Does detaining a suspect at gunpoint necessarily create a de facto arrest?
No, not if it is reasonable for the situation
If a detention turns into a de facto arrest, what would make the seizure lawful?
As long as probable cause objectively exists prior to the arrest
What are the exceptions to not transporting a suspect during a field identification show up?
• when PC exists to arrest
• voluntary consent of suspect to transport
• victim cannot be moved
• when no other practical alternative exists (e. g., no other officers available)
(LSB, ch. 2/III. F.)
If a detainee is on searchable probation, parole or PRCS, can he be searched without any suspicion of criminal activity?
Yes
What relevant factors have historically been used to uphold a pat-down for weapons?
• nature of the crime being investigated
• bulge in the detainee’s clothing
• movement toward a place where a weapon could be concealed
• knowledge that a detainee was previously found to be armed
(LSB, ch. 2/III. J.)
Is aggression a legitimate reason for conducting a pat-down?
Yes
True or false: the justification for a pat-down is based on a reasonable belief that the suspect is armed and dangerous?
False, armed OR dangerous
Does “flight” alone constitute RS for a detention?
No
If someone denies a connection to an item, do they have any interest in privacy of the object?
No, it can be searched
In California, are peace officers required by statute to cite and release for minor VC infractions, except under specified conditions?
Yes
Can a peace officer arrest a suspect inside his home without a warrant?
Only if he has,
• exigent circumstances,
• consent,
• is on prole, searchable probation, PRCS, mandatory supervision
If a suspect is standing in the doorway of his residence, can he be arrested without a warrant?
Yes, a doorway is considered a “public place”
If a suspect is inside an area of a business or office that is not open to the public, can he be arrested without a warrant?
No, unless you have consent, EC, parole, etc.
If a suspect is inside ANOTHER PERSON’S home, can he be arrested without a warrant?
No
What are the types of exigent circumstances that allow a peace officer to enter someone’s home?
• imminent danger to life or property
• imminent escape of a suspect
• destruction of evidence
If contraband is seen by surprise inside a home from the doorway, can a peace officer make entry based on exigent circumstances?
Yes, because the contraband will most likely be destroyed by the occupants
Do “fresh pursuit” and “hot pursuit” apply to misdemeanors?
Generally no, only felonies
What additional factors are needed for a “hot pursuit” of a misdemeanor to be valid?
1) imminent harm to others,
2) threat to the officer,
3) destruction of evidence,
4) escape from the home
(LSB, ch. 2/V.)
True or false: consent to enter a home is valid as long as you do not misrepresent your purpose?
True
Does it invalidate an entry for an undercover cop to hide his identity as long as he obtains valid consent to enter the residence?
No, an undercover cop only needs valid consent to enter a home
A search incident to arrest requires what kind of arrest?
a custodial arrest
Can you search a suspect “incident to arrest” for an infraction or cite-and-release misdemeanor?
No, it must be custodial
Can a peace officer search a juvenile if he is only transporting him in his car for truancy?
Yes, “temporary custody”
Can police search a cell phone incident to arrest?
No
In order to search a cell phone without a warrant, what factors need to be in place?
• consent
• exigent circumstances
• parole, PRCS
Can a peace officer search a PROBATIONER’S cell phone?
Only if the search conditions clearly state it (and assuming he is authorized to possess the phone)
Can a parolee’s or probationer’s cell phone be searched if it is his sister’s phone, but she does not know he took her phone?
No, he must be an AUTHORIZED possessor
True or false: an anonymous tip that someone is carrying a firearm is sufficient under the “public safety exception” for a detention and pat-down for weapons?
False (LSB, ch. 2/VII.)
During an ILLEGAL arrest, can the arrestee give voluntary consent to search?
No, it will not be considered voluntary
If a DUI driver is unconscious, is a warrant generally required to draw his blood?
No
If a DUI driver has search conditions, is a warrant required to draw his blood?
No, as long as it is known prior to the search
If a suspect refuses to give consent to stomach pumping in a life threatening situation, is it proper to let the physician decide what to do?
Yes
Does taking fingernail scrapings of a suspect require a search warrant?
No (LSB, ch. 2/IX/B. 3.)
Is it permissible to hold down an uncooperative DUI suspect in order to obtain a blood sample?
Yes
When is it legal to remove evidence from a suspect’s mouth?
If PC exists to believe there is evidence in a suspect’s mouth, police may use reasonable force to remove it
What justification would be used to remove evidence from a suspect’s mouth?
• destruction of evidence
• potential safety threat to the suspect
How would a suspect’s safety be in danger by holding evidence in his mouth?
Choking hazard or ingestion of high doses of drugs
Is it legal to place a suspect in a choke hold in order to prevent him from swallowing evidence?
No, it’s too risky for his safety (breathing and blood flow)
Under what conditions can police exert minimal pressure on the neck in order to prevent a suspect from swallowing evidence?
As long as the pressure does not choke or otherwise impare the suspect’s breathing
If an item containing DNA has been abandoned, is a warrant required to test the item for DNA for identification purposes?
No
Is a warrant required to test a PAS device for DNA after the suspect uses the PAS device and leaves DNA behind on the device?
No
If you are following a vehicle and the vehicle voluntarily pulls over without you activating the red light, is that vehicle detained?
No (LSB, ch. 4/II)
If police shine a white light into a moving vehicle, then follow it without activating a red light or siren, and the vehicle pulls over voluntarily, is the vehicle detained?
No (LSB, ch. 4/II)
Does a parking violation justify a detention of a vehicle?
Yes
During a traffic stop, who is considered detained?
All occupants (driver and passengers)
What are the exceptions that allow a vehicle to be searched during a DETENTION only?
• pat-down for weapons
• search for registration
• parole, PRCS, probation
If a passenger is a parolee, what areas of the car can be searched?
Passenger compartment including any containers
If a passenger is a probationer with search conditions, what areas of the car can be searched?
Passenger compartment including any containers
Can a vehicle be searched incident to a cite-and-release arrest?
No
True or false: a vehicle can be searched incident to arrest even if the suspect no longer has access to the passenger compartment of the vehicle?
False, if he doesn’t have access, this reason cannot be used
When can police search a vehicle for evidence, incident to arrest?
When it is reasonable to believe that evidence of the crime could be found in the vehicle
If an arrestee has access to the passenger compartment of a vehicle, can a container possessed by a non-arrested person be searched?
Yes (LSB, ch. 4/III. B.)
Can luggage and clothing be searched in the passenger compartment of a vehicle when an arrestee has access to the interior of the vehicle?
Yes
If an arrestee has access to the interior of a vehicle, can the closed glove compartment be searched?
Yes
If a passenger of a vehicle is arrested for public intoxication, can the passenger compartment be searched incident to a custodial arrest?
Yes, for evidence relating to the crime (LSB, ch. 4/III. B.)
If a vehicle is searched incident to arrest, must the search take place at the location?
Yes
If a driver denies having vehicle registration, can police search the vehicle for the documents?
Yes, in places where it can reasonably alt be found
Can a search of a vehicle incident to arrest occur before the actual arrest?
Yes, provided there is PC to arrest at the time of the search
Does PC—the automobile exception—apply to bicycles and motorcycles?
Yes
If a vehicle reasonably appears to be mobile even though it isn’t, will probable cause (the automobile exception) still be valid for a search?
Yes
Does the automobile exception of probable cause apply to houseboats and motor homes?
Yes
Does probable cause allow police to search a van?
Yes
If a motor home is at a campground or overnight facility, does probable cause allow police to search it?
No, a warrant is needed
If a house boat is in public waters and obviously mobile, does probable cause allow police to search it?
Yes
Does the smell of burnt marijuana alone provide PC to search a vehicle during a traffic stop?
No (LSB, ch. 4/IV. G.)
Is a driver allowed to possess marijuana on his person while driving?
Only if it is carried in a receptacle where the seal is not broken (unopened receptacle)
Is a driver allowed to carry loose cannabis flower on his person while driving?
No, must be in a closed container
Is a closed plastic baggie of marijuana in a vehicle considered a closed container?
Yes
If a driver admits to having recently used marijuana, can the vehicle be searched?
Yes, driver cannot drive impaired
What is 28.5 grams of marijuana equal to?
1 ounce
How much concentrated cannabis is LEGAL to posses by persons 21 and older?
8 grams
How many marijuana plants can be possessed by persons 21 and older?
6
Is it lawful to possess marijuana plants in a home that are visible from a public place?
No, they must be out of view
How many marijuana plants are allowed per residence?
6
If evidence in a vehicle is going to be destroyed, is it legal to seize it?
Yes, exigent circumstances—destruction of evidence
If police see criminal evidence in a vehicle, can they enter the vehicle to retrieve it?
Yes
Is it considered a “search” to use a K-9 to sniff around a vehicle?
No
Is there a reasonable expectation of privacy in a VIN?
No
Can a stolen vehicle be searched?
Yes, it is evidence of a crime
If all occupants of a vehicle deny ownership of a container, can the container be searched?
Yes
Can a victim of a stolen vehicle give consent to search the vehicle when it is recovered?
Yes
Can a car in which a kidnap victim was kidnapped be searched?
Yes, instrumentality of the crime
Is a condominium garage, accessible to the public, protected under the 4th amendment?
No
Does the interior hallway outside of an apartment of a high-rise apartment building (not open to the public and secured) have an expectation to privacy by law enforcement?
No, even if the police commit a trespass
Is it proper for police to access a private driveway?
Yes, a driveway has no expectation of privacy
Is a residential carport structure, not used by multiple dwellings, protected by the 4th amendment?
Yes
Does a chain link fence around a front yard automatically exclude a police search?
No
In the shared back yard of a multi-unit apartment complex, do apartment dwellers have a reasonable expectation of privacy?
No (LSB, ch. 3/II. C. 4.)
Is every entrance into a back yard automatically illegal?
No
Is a front porch necessarily within the curtilage of a home?
Yes
True or false: in order to qualify as “open fields” of a property, the area must be open and similar to a field?
False, they don’t have to be open or real fields
What are “open fields” of a property?
Areas beyond the curtilage of a home
Can police trespass onto “open fields” of a property in order to observe illegal activity within the curtilage of the home?
Yes
True or false: curtilage applies to the area immediately surrounding any building or structure?
False, only structures being used as homes or occupied dwellings
If a private citizen searches an item and finds contraband, can the police also search the item?
Yes, as long as it doesn’t exceed the scope of intrusion made by the private citizen
Can a private citizen search an item at the request of police?
No, they cannot work on behalf of the police; the search will be unlawful
If contraband is seen during a protective sweep of a residence, can police re-enter the residence after completing the sweep, without a warrant, in order to seize the contraband?
Yes, as long as they don’t wait too long
If police discover evidence in plain view during a protective sweep and after the sweep different officers or a coroner enter to seize the evidence, is the seizure lawful?
Yes, as long as they don’t wait too long
Can police enter a residence without a warrant in order to help an injured animal, such as a dog?
Yes (LSB, ch. 3/IV. A. 2)
Does a warrant allow police to detain other people on the premises during execution of the warrant?
Yes
Does the reply, “do what you want” when asking for consent to search count as express consent?
Yes (LSB, ch. 3/VI. A. 3.)
Can hand gestures be a valid indication of implied consent to search?
Yes (LSB, ch. 3/VI. A. 3.)
Will silence in response to a request to search or enter a residence be valid?
No, all suspects have the right to remain silent
If two people share a container or area of a residence and one consents to a search of the shared property, can police search it?
Yes
True or false: spouses can consent to a search of the other spouse’s property in any case?
False, only if they have joint access or use of item or area
If a minor refuses to give consent to search but the parent gives consent, is the search lawful?
Yes
Can a parent give consent to search the property of their minor child if the parent denies any claim or ownership to the property?
No
Can a roommate who has moved out but is still within the rental period and is returning to gather her belongings give consent to search shared areas?
Yes
Can a host consent to a search of a room where a guest is staying?
Yes, as long as the guest is not paying
Can a motel employee enter a room on behalf of police to search for contraband?
No, they cannot work as an agent of law enforcement
Can police openly request permission from a real estate agent to search a resident’s property?
No because they lack consent from the home owner
If a police officer does not disclose his identity and enters a home through a real estate agent on a ruse of buying the home, is the search valid?
Yes, the owner has given consent to examine the property by prospective buyers
Can an impartial military base commander authorize a civilian peace officer to search barracks?
Yes, as long as they are under his control and upon a showing of probable cause
If one person gives a locked briefcase to another person for temporary keeping, does the person holding the briefcase have authority to consent to a search of it?
No, unless he has the key or some other form of access
If a suspect is arrested holding a bag, can the bag be searched?
Yes, incident to arrest
If a suspect is arrested inside his home, what areas can be searched incident to arrest?
Areas within “lunging” distance
When must a search incident to arrest be undertaken?
Just before, during or immediately after the arrest
If a suspect is arrested inside his home and he asks to go into another part of the home, can police lawfully seize any contraband in plain view?
Yes because the suspect ASKED to be moved to the other part of the residence
When arresting a suspect inside his home, can police broaden the “plain view” area by moving a suspect into another room?
No, not if the suspect doesn’t request to be moved
True or false: evidence seized in compliance with the federal constitution is admissible in state court even if state law was violated in seizing the evidence?
True
If a suspect at a restaurant leaves his jacket on a chair upon fleeing the restaurant, can police search it?
Yes, abandonment
True or false: due to the danger of drunk drivers, the courts have approved traffic stops based only on contemporaneous, anonymous reports of suspected drunk driving?
True (LSB, ch. 17/I. B.)
Can a police officer, without scientific qualifications, translate the HGN test into a specific BAC level?
No, not a specific level
Can a police officer, without any scientific qualifications, use the HGN test to form a conclusion about whether a driver is under the influence?
Yes
Can a police officer, without any scientific qualifications, testify in court about his use of the HGN test?
Yes, he just can’t translate it into a specific BAC level
Is it illegal to drive a vehicle while ADDICTED to any drug if the driver is currently participating in an approved narcotic treatment program?
No, It’s only illegal if they are not receiving treatment
True or false: 23152 V. C. applies to any place a vehicle can be driven?
True, not just public highways
True or false: only a general degree of intoxication is required to be proven in order to show probable cause for DUI?
True, it is not required to prove a specific degree of intoxication
Can a DUI occur on an electric motor board?
Yes
Can a DUI occur on a skateboard?
No
Can a DUI occur on a horse-drawn vehicle?
Yes
Under what circumstances can police arrest for DUI not committed in their presence?
• traffic accident
• vehicle obstructing roadway
• will not be apprehended unless immediately arrested
• may cause injury or damage to property unless immediately arrested
• destruction of evidence
Is a warrant required for a DUI breath test?
No
Is a warrant required for a DUI blood test?
Yes
Must a DUI suspect be mirandized before administering FSTs and questioning?
No
True or false: possession, along with suspicious circumstances, will justify the inference that property was received with knowledge that it had been stolen?
True (LSB, ch. 13/II. E.)
What are some factors showing that a person received stolen property?
• flight
• false statements as to how he acquired property
• use of false name and unable to establish existence of supposed seller
• sale of property under a false name and at an inadequate price
• sale of property with ID marks removed
• attempt to discard property
What are the elements for Disturbing a Religious Meeting, 302 P. C.?
• Disturbing a religious assembly
• MISDEMEANOR
What level of crime is Disturbing a Political Meeting, 18340 Elec. Code?
MISDEMEANOR
Is it illegal to brandish an imitation firearm?
Yes, MISDEMEANOR
True or false: as long as detentions of students on campus are not capricious, RS is not required?
True
If no one is present at a residence and one co-tenant of equal authority previously gave consent to enter and search, is that legal?
Yes
If three co-tenants are standing at the door and one of them gives consent to enter and search but the other two remain quiet, must deputies seek consent from the other two?
No, consent will be valid
If an absent cohabitant gives consent to enter and search, but there are others present at the location, is the consent valid?
Yes, as long as those present do not object to the entry and search
If an absent cohabitant has given consent to enter and search, but one who is actually present objects, can police enter?
No, the person present overrides the absent person
If a husband and wife are at the door and the wife gives consent to enter but the husband expressly refuses, can police enter?
No
If an adult cohabitant who is immediately present refuses consent to enter, can police enter a residence in order to prevent domestic violence?
Yes
Can police enter a residence in order to keep the peace while one consenting occupant gathers their belongings and leaves to a place of safety?
Yes
Is it lawful to enter a premises (against refusal) to determine whether violence or the threat of violence has just occurred or is about to occur?
Yes (LSB, ch. 6/C. 2.)
Can police enter a residence (against refusal) if there is a reasonable belief that someone inside is in need of aid?
Yes
If deputies have a reasonable belief that their safety is in jeopardy, can they enter a residence (against refusal) in order to protect themselves?
Yes (LSB, ch. 6/C. 2.)
If police are waiting for a search warrant to be issued and, while waiting, there suddenly arises a threat that evidence will be destroyed, can police enter the residence even if someone refuses?
Yes, entry is lawful
If there is a reasonable belief that a suspect will flee, can police enter a premises against an occupant’s refusal?
Yes
If a building is in imminent danger of destruction, can police enter against an occupant’s refusal?
Yes
If police knock and a visitor answers the door, does that visitor have authority to allow them to enter?
Yes, unless someone with more authority objects (LSB, ch. 6/C. 4.)
True or false: police may assume without further inquiry that an adult person who answers the door of a residence in response to their knock also has the authority to let them enter?
True (LSB, ch. 6/C. 4.)
Can a witness to a crime be lawfully detained if he has important information regarding a murder?
Only with his consent; otherwise probable cause is needed to arrest
Are magistrates authorized by law to order a private person to arrest someone?
Yes, if the offense is committed in their presence (838 P. C.)
Are magistrates authorized by law to verbally order a peace officer to arrest a person for a crime?
Yes when committed in their presence, 838 P. C.
Can an order to show cause (OSC) also be a TRO?
Yes, if the judge has authorized it and the appropriate box on the form is checked
Does a driveway have an expectation of privacy?
No
