Search and Seizure Flashcards
Seizure
taking a possession or arresting a person, affects possessory interest
Search
governmental intrusion into an area someone has a reasonable expectation of privacy, affects privacy interests
Warrant requirements apply to:
The government and it’s agents (i.e. us)
Exceptions for warrants
plain view, emergency circumstances, permission (consensual search), good faith (honest mistake), bad warrant (would have found anyway)
To search legally: (acronym)
CREW
C.R.E.W.
Consent
Recognized Exceptions
Warrant
4th Amendment
Unreasonable / warrantless search and seizure
What constitutes a search?
- was the gov’t involved?
- has the individual by his conduct exhibited an actual expectation of privacy?
- Individual expectation that society is prepared to recognize as reasonable
Plainview
knowingly exposing evidence to the public (severed head in the backseat)
Reasons for warrantless seizure
- legitimately on the premises
- Discover evidence / fruit of crime / contraband in plain view
- Officer must have probable cause to believe evidence is contraband (no noodling!)
Reasonable Suspicion: Detentions
can detain at reasonable suspicion to see if they “might” or “has” done it (considered a seizure of persons)
What crimes do I see, what facts support it, more than hunch. All observations have to be made prior to the stop.
Probable Cause: Detentions
an officer believes they have evidence to establish they “probably” committed a crime, (seizure of evidence and persons - arrest)
Terry v Ohio (Searches)
established purpose and permissions for seizure of persons potentially engaged in criminal activity via investigatory detentions
first have to stop because you believe a crime is afoot
armed and dangerous, officer safety
Sources for Probable Cause
personal observations of officer, information from witnesses / confidential informants, hearsay (if properly documented)
Importance of documentation
If you don’t document what happened, it didn’t happen according to the courts
Types of Citizen Contacts
Consensual, Investigatory Stop, Stop and Frisk (only for officer safety), Arrest
Investigatory Detention
Must have articulable reason why you detained subject, must fall within a reasonable time frame, cannot move suspect (movement = arrest)
purpose of suspicion is reasonable
scope and character
To detain
you must think and be able to say why you think something criminal is happening
To frisk
identify and articulate why you think they are armed and pose a risk to your safety
Terry Frisks are not searches T or F
False, searching for weapons even for officer safety is “invading privacy”, but you only need reasonable suspicion
Frisks are not for evidence collection T or F
True! Mini searches require PC for anything other than weapons, so NO NOODLING
Seizure of a person
if a reasonable person would believe they are not free to leave
3 prong test for reasonable suspicion
- What crime do I see?
- What facts do I see to support step 1?
- Is this a hunch?
Facts must be established before initiating the stop
Probable Cause Affidavit
what officers know about a crime and how, statement of evidence of the crime to the point they are presently at, judge must approve for a warrant
Warrantless Car Searches
- Automobile Exception - “inherent mobility”
- Search Incident to Arrest - “Officer Safety”
- Inventory Search - preventing lost or stolen items
- Protective Sweep for Weapons - “Officer Safety”
Automobile Exception for Searches and the Scope
inherent mobility, there is probable cause that there is evidence of the crime or contraband in the vehicle or the car is the instrument of a crime, conducted due to the ability of the suspect and evidence to leave.
Scope: entire car including trunk and containers
Search Incident to Arrest and Scope of Search
Search to prevent suspect from re-entering vehicle and obtaining weapons to attack the officer, not for evidence collection.
Scope: Entire passenger compartment and any contents capable of concealing a weapon (glove box and center console)
Inventory Search and Scope
Search to prevent claims of lost or stolen items, legally impounded vehicles can be searched and inventoried with no PC or RS. Must have a standardized departmental policy.
Protective Sweep of Vehicle and Scope
Must have articulable belief there are weapons in the car, search may continue for as long as officer is in danger (when suspect is secured in patrol car exigency ends)
Scope: passenger compartment only, not for evidence
Plainview applications on officer safety searches
plain view applies to any contraband found during officer safety searches, cannot search trunks or locked containers during safety sweeps
Legal Standing to Contest Illegal Search and Seizure
Only the person whose rights were violated has standing to contest a government violation
Must have possessory interest in the property seized or legitimate privacy interest in area searched
Home is our castle principle
private residences enjoy the highest expectation of privacy
Temporary Residences
Hotel / Motel Rooms, Campsites
Granted same protections as private residences
Temporary Residence Exceptions
Abandonment - flight from hotel room
Plain view - contraband in tent with no rain fly
End of term or lease - they are occupying a hotel room they no longer have reserved
T or F: Garages are treated similarly to houses under the 4th Amend.
True
T or F: Tents on public land still have a reasonable expectation of privacy
True, US v Sandoval
Curtilage
Area outside of a residence normally used for living purposes (porches, fenced yards)
Plain view - Residences
officers legitimately on premises, evidence / contraband can be seen without aid
Expectation of privacy - residences
No expectation of privacy to things voluntarily exposed to public view (open curtains, murdering someone in your living room)
Exigent Circumstances
PC of an ongoing crime, medical emergency, or destruction of evidence
Consensual Entry
permission from someone with legal authority to give it, allows entry to residence for search (they can place limitations on consensual searches or revoke consent at any time)
Exceptions for Residential Warrant Requirements
Consent, Plain view, exigent circumstances
Examples of Exigent Circumstances
Physical harm to officers or others, Destruction of evidence, escape of a suspect, emergency aid
Entry to secure residence
allowed to prevent destruction of evidence or flight, may not search for evidence, detain residents / occupants outside until a warrant can be obtained.
Rescue / Aid exception
Needing to assist a gravely injured person or someone being attacked, once aid is rendered and scene secured officers must secure residence and wait for warrant to search
Protective Sweep of a residence
Searching for suspect to ensure they are not hiding in the residence, once residence is cleared, officers must secure and wait for a warrant
Knock and Talk
making contact with occupants to try and seek consensual search / entry
Exclusionary Rule
Admissibility of illegally obtained evidence, designed to deter police misconduct
Exceptions to the exclusionary rule
Good faith mistake, independent source, inevitable discovery
Interrogation
asking questions to illicit a response to incriminate while in custody
Purpose of Miranda
protect suspects from compulsion in a police dominated atmosphere (5th amend - self incrim)
Exceptions to Miranda Warnings
Routine booking questions, jailhouse informants, public safety (WHERE IS THE BOMB)
