Search and Seizure

Question 1

General Summary

Answer 1

• evidence obtained as result of unreasonable search or seizure cannot be used to prove a criminal defendant’s guilt.

Question 2

Which Actors Matter for Fourth Amendment Purposes

Answer 2

• For something to be a search, it must have been executed by a government agent.
• There are two important categories of government agents.

Question 3

Two Categories of Government Agents

Answer 3

1. publicly paid police on or off duty;
2. private citizens if and only if they are acting at the direction of the police.

Question 4

Private Security Guards and Government Agents

Answer 4

private security guards generally are not government agents.

Question 5

Definition of a Search

Answer 5

• any official action that intrudes upon a person’s reasonable expectation of privacy

Question 6

effect of police conduct that is deemed not to be a search

Answer 6

• If it’s not a search, police can do it.

Question 7

Examples of Police Conduct Not Constituting a Search

Answer 7

1. aerial surveillance of a fenced yard
2. examination of trash left in yard
3. determining numbers dialed from residential home (“pen register”) (but not the content of the convos)
4. having a dog sniff luggage in airport
5. account records (e.g. bank records) held by a third party
6. the sound of your voice
7. odors emanating from your car or luggage

Question 8

Examples of Police Conduct Constituting a Search

Answer 8

1. rigorous squeezing of luggage in a bus overhead rack
2. thermal imaging scan of residence
3. attaching a tracking device to a vehicle and using it for long-term monitoring of the vehicle’s location
4. bringing a drug-sniffing dog onto the porch of a house

Question 9

Plain View Doctrine

Answer 9

• officers merely exercise their right to engage in “plain view” and do not search if they:

1. reach a location without violating the fourth amendment; and
2. simply look at something in open view

Question 10

Open Fields

Answer 10

• Not a search if officers go upon any unoccupied or undeveloped area of land that is not part of a home’s curtilage
  
  • curtilage:area surrounding and used in connection with a residence
    
    • examples of curtilage: back yard enclosed by a fence; front porch

Question 11

How to Analyze a S/S question if you’re on the fence about whether the conduct was a search

Answer 11

ask yourself if the supreme court can find themselves in the D’s shoe. If so, it’s probably a search.

Question 12

Requirements for a Search to be Reasonable

Answer 12

1. for a search to be “reasonable”, two general requirements:
   
   1. must be pursuant to a valid search warrant (but exceptions); and
   2. must be based on probable cause.

Question 13

Probable Cause Definition for a Reaosnable Search

Answer 13

Facts from which a reasonable person would conclude that there is a fair probability that seizable items will be found in the premises.

Question 14

Reasonable Searches

Probable Cause Proof Requirement

Answer 14

• Must have proof of a fair probability that contraband or evidence of crime will be found in the area searched
• Hearsay is admissible for determining probable cause

Question 15

Probable Cause and Informants

Answer 15

1. Police may rely on info obtained from an informant’s tip, even if the information is anonymous.
2. The sufficiency of the informant’s tip rests on the police corroborating enough of the tipster’s information to allow the magistrate to make a “common sense practical” determination that probable cause exists
   
   1. if police cite number of times where warrant was reliable, take note

Question 16

Drug Dogs and PC during Traffic Stops

Answer 16

1. During a routine traffic stop, a dog alert to the presence of drugs creates PC to search the car.

Question 17

Reasonableness of DNA Cheek Swab

Answer 17

1. When police arrest for a “serious offense,” it is reasonable to take and analyze a cheek swab of DNA
   
   1. serious offense not defined

Question 18

Items Subject to Seizure

Answer 18

1. contraband (something illegal to possess)
2. “fruits” of crime- things you got bc of the crime
3. instruments of crime
4. evidence that a crime was committed or that a particular person committed it (“mere evidence”) e.g. you did the crime in a red shirt. Shirt seizable

Question 19

Warrant Definition

Answer 19

judicial order authorizing search and seizure

Question 20

Information that a Warrant Must be Issued Upon

Answer 20

• Warrant must be issued on information constituting “probable cause”

Question 21

Warrant Affidavit Requirement

Answer 21

1. Affidavit must set out facts from which issuing magistrate can make independent judgement that probable cause exists

Question 22

Warrant Specificity Requirement

Answer 22

1. Warrant must describe specifically both:
   
   1. place to be searched; and
   2. items to be searched for and seized.

Question 23

General Warrant Rule

Answer 23

1. No “general warrants”
   
   1. can’t authorize fishing expedition
   2. e.g. can’t be “for evidence linked to the murder”

Question 24

Announcement/No Knock Entry Rule

Answer 24

1. before entering premises, officers must “knock and announce,” and give occupants opportunity to admit the officers.

Question 25

Announcement/No Knock Entry Rule Exception

Answer 25

1. if officers had reasonable suspicion that occupants inside would either resist with force or remove/destroy items for which warrant is issued.

Question 26

Announcement/No Knock Entry Examples

Answer 26

1. Deemed reasonable when PC occupant was dealing drugs, had violent criminal history, and kept a cache of weapons in the home 2. But, unreasonable when person just a drug manufacturer with no other aggravating circumstance

Question 27

Scope of Search

Answer 27

1. Search must be limited to both: 1. place described; and 2. within that place, those locations where described items might reasonably be expected to be located.

Question 28

Items Subject to Seizure

Answer 28

1. Officer can seize: 1. items reasonably believed to be those described; and 2. other items found in “pain view” during search if PC exists to believe they are seizable.

Question 29

Seizure and Plain View

Answer 29

1. Officers executing a warrant can seize some undescribed items they discover in “plain view” during search. 2. Plain view- can’t do anything to find that item other than observe it while in the process of searching what you’re searching for.

Question 30

When Plain View does not Apply

Answer 30

1. Plain view seizure rule does not apply if officers are searching improperly

Question 31

Plain View Seizure/Search Distinction

Answer 31

1. Plain view is a seizure, not a search. You can seize something in plain view, not search it. So you can’t just go into a seemingly innocent backpack because it’s plain view.

Question 32

Challenges to Warrant for False Information

Answer 32

1. must show that police officer 1. misstated facts 2. intentionally or recklessly with respect to the trust 3. and that the misstated fact was material, so that without that fact, the affidavit was not sufficient

Question 33

Warrant Requirement List of Exceptions

Answer 33

1. Consent 2. Automobile 3. Exigent Circumstances 4. Special Needs 5. Search Incident to a Lawful Arrest 6. Inventory Searches

Question 34

Consent Exception Warrant/PC Requirement

Answer 34

need not a warrant or PC for consent

Question 35

Consent Requirements

Answer 35

1. Must be voluntary 1. can’t be coerced. 2. Must be from either: 1. actual authority, or 1. someone with a general right of access to the premises 2. apparent authority 1. someone who police reasonably believes to have that access

Question 36

Consent and Joint Occupants

Answer 36

1. Officers need consent from only one of several joint occupants 2. If joint occupant at whom search is directed is present and actively objecting, consent from other joint occupants is not effective. 1. police can just wait for the objecting occupant to leave, arrest him and then search

Question 37

Scope of Consent

Answer 37

1. covers what reasonable person in the situation would understand the words used to mean

Question 38

Apparent Authority

Answer 38

1. if a police officer obtains consent to search from someone who lacks “actual” authority to grant it consent still valid if: 2. the officer reasonably believed that the consenting party had “actual” authority.

Question 39

Apparent Authority Exceptions

Answer 39

1. Hotel operators 2. landlords

Question 40

Apparent Authority Example

Answer 40

* was found where officers believed that a woman had actual authority to consent to their entry into her boyfriend’s apartment * b/c she referred to the apartment as "ours,” had a key to enter it, and claimed to keep personal belongings there.

Question 41

Notification of the Right to Refuse Consent

Answer 41

Officers don’t have to tell you that you have the right to refuse consent.

Question 42

Consent Scope

Answer 42

1. If you give officer consent to search your car with no express limits, he can search inside containers in the vehicle too 2. But, you can set the scope of the consent to certain areas only, and cops still cannot search anywhere the suspected items could not reasonably be seized

Question 43

Vehicle (Automobile) Exception to the Warrant Preference Rule

Answer 43

1. Moving vehicles and those parked in public places can be search without a warrant 2. But, police need PC to believe contraband is in the car.

Question 44

Automobile Exception and Routine Traffic Stops

Answer 44

1. cop does not need PC at the time he pulls someone over. They can use things that happened after police stopped person to determine PC

Question 45

Scope of Search under Automobile Exception

Answer 45

1. search can extend to any place where items might be found.

Question 46

Search Incident to a Lawful Arrest and Automobiles

Answer 46

1. Can search vehicle after arresting someone who was in the vehicle: 1. if there is reason to believe evidence related to the crime of arrest is located in the vehicle or the arrestee is unsecured.

Question 47

Scope of SILA search of Automobile

Answer 47

1. If searching under SILA, can search passenger compartment (including glove compartment) but not the trunk.

Question 48

SILA Search of Automobile after Officer has Secured Arrestee

Answer 48

1. the officer can search the arrestee’s vehicle ONLY if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest is made. 1. e.g. if arrested and secured for speeding, can’t search for drugs.

Question 49

Inventory Exception and Automobiles

Answer 49

1. properly impounded vehicle may be inventoried pursuant to standardized procedure. 2. If it violates procedure, cannot inventory search.

Question 50

Search of Contents of Containers in Cars

Answer 50

* Contents of containers in car can be examined if car can be searched

Question 51

Pretextual Stops

Answer 51

1. definition: stopping someone for a reason other than named, usually a nefarious reason 2. If officers have PC to believe a traffic violation was committed, their actual motive is irrelevant

Question 52

Exigent Circumstances Elements

Answer 52

1. A warrantless search is permitted if officers have both: 1. a reason to believe delaying the search to get a warrant would result in removal or destruction of the subject items, and 2. PC to believe seizable items will be found

Question 53

Exigent Circumstances Warrantless blood draws in DWI cases

Answer 53

1. can be done under exigent circs because BAC dissipates in the blood stream. 2. But, police cannot do this all the time, nor automatically. Look at the totality of the circs to see if it is reasonable for police to be able to get the warrant.

Question 54

Exigent Circumstances Hot Pursuit of a Fleeing Felon

Answer 54

1. hot pursuit allows police, when looking for a suspect, to enter a suspect’s home or that of a 3^rd party into which he has fled. 2. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.

Question 55

Exigent Circumstances PC requirement

Answer 55

Exigency alone is NOT sufficient, still need PC. No “gut feelings”

Question 56

Special Needs Searches Rule

Answer 56

1. Warrantless search permitted if law enforcement, governmental employers, or school officials have an interest other than law enforcement

Question 57

Special Needs Searches Random Drug Testing

Answer 57

1. SCOTUS has approved warrantless, random drug tests for: 1. railroad employees following an impact accident 2. customs agents who are responsible for drug interdiction 3. public school children who participate in any extracurricular activities 4. but NOT for political candidates

Question 58

Special Needs Searches Government Employees' Desks and Files

Answer 58

1. warrantless searches of govt employees’ desks and files are permitted to investigate work-related misconduct.

Question 59

Special Needs Searches Students "Effects" in Public Schools

Answer 59

1. Warrantless searches of the effects of public schoolchildren (e.g. purses and backpacks) are permissible to investigate violations of school rules.

Question 60

Special Needs Searches Students "effects" in Public Schools Age of Schoolchildren

Answer 60

* No differences in standards due to age of schoolchildren

Question 61

Special Needs Searches Students "effects" in Public Schools Suspicion Requirement

Answer 61

1. School officials only need reasonable suspicion that student has banned items

Question 62

Special Needs Searches Students "effects" in Public Schools Scope of Search

Answer 62

1. Can even strip search

Question 63

Special Needs Searches Border Searches

Answer 63

1. neither citizens nor non-citizens have any 4^th amendment rights at the border with respect to **routine** searches of persons and effects. 2. body cavity searches not likely routine

Question 64

Special Needs Searches Examples of Conduct Not Permitted Under the Exception

Answer 64

1. the involuntary drug testing of pregnant women was deemed impermissible where the S. Ct. found that its primary purpose was to coerce patients into a substance abuse program through the threat of criminal prosecution. 2. Other suspicionless drug tests are not permitted where their **primary purpose** is to gather **criminal evidence** for use by law enforcement. 1. e.g. DWI checkpoint is for public safety, not to criminalize ppl

Question 65

Search Incident to a Lawful Arrest Rule

Answer 65

1. if a valid custodial arrest is made, there is an automatic right to search 2 places: 1. person of the arrestee (which includes pockets and items found on the person of the arrestee) and 2. area of possible reach.

Question 66

SILA Timing

Answer 66

1. the search incident to arrest must be contemporaneous in time and place with the arrest.

Question 67

SILA arrest inside premises

Answer 67

1. officers automatically can look in immediately adjoining places where persons might be concealed 2. protective sweep of entire premises can be made but only if officers have RS that other dangerous persons might be present

Question 68

SILA Reasonable Arrest Requirement

Answer 68

1. SILA arrest requires PC to believe person committed offense

Question 69

SILA and Arrest Warrents

Answer 69

1. Warrant is req only if premises are entered to search for suspect 1. if searching the suspect’s own residence, an arrest warrant is sufficient 2. If searching other premises, warrant required.

Question 70

Inventory Searches

Answer 70

1. following arrest, police may inventory all of the arrestee’s personal belongings. 2. Police may also inventory the contents of an automobile

Question 71

Inventory Searches and Department Policy

Answer 71

1. In conducting the inventory, police must follow an existing department policy.

Question 72

Seizure of Inventoried Property

Answer 72

1. Police can seize any contraband found during the inventory.

Question 73

Most common inventory scenarios

Answer 73

1. Arrestees: when booked into jail 2. Vehicles: when impounded

Question 74

Nonarrest Detentions and Citizen-Officer Contact

Answer 74

1. Detention, not valid arrest, can often be justified as a Terry stop.

Question 75

Terry Stop Definition

Answer 75

a brief detention or “seizure” for the purpose of investigating suspicious conduct.

Question 76

Where Terry Stops can Take Place

Answer 76

1. *Terry* stops can take place anywhere, e.g. on the street, in a car, in an airport concourse, or on a bus

Question 77

When a Terry Stop Turns into a Seizure

Answer 77

1. when, based on totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer questions.

Question 78

Considerations for determining if a Terry stop is a seizure

Answer 78

1. In evaluating whether an individual has been seized during questioning by law enforcement, you should consider: 1. whether an officer brandishes a weapon 2. the officer’s tone and demeanor when interacting with the individual questioned; and 3. whether the individual was told she had the right to refuse consent.

Question 79

Seizure and Fleeing Suspects

Answer 79

1. When being pursued by a police officer, an individual is seized only if he submits to the officer’s authority by stopping or if the officer physically restrains him. 1. so, if suspect runs from cops and throws out/accidentally spills drugs, he wasn’t seized and drugs admissible.

Question 80

Seizure and Traffic Stops

Answer 80

1. in a traffic stop, both the driver and the passengers are seized, such that either can challenge the legality of the stop 2. NOT the same for searches

Question 81

Seizure and Dog Sniffs

Answer 81

1. it is permissible for K9 officers to sniff the exterior of car during traffic stop while computer is checking DL and registration. No more a seizure than if K9 wan’t there 2. K9 sniffs must not prolong the stop unreasonably

Question 82

Terry Stops and Reasonable Suspicion

Answer 82

1. A terry stop for investigation may be made on reasonable suspicion. Some objective basis for officer’s suspicion that suspect has committed, is committing, or is about to commit a crime. 2. Anonymous tip not enough for RS if not adequately corroborated

Question 83

Limits on Terry Stops

Answer 83

1. cannot be lengthy-too long is seizure and you need PC 2. suspect cannot be extensively moved (not to station house) and 3. no automatic right to search.

Question 84

Terry Frisk General Rule

Answer 84

1. officer needs RS that the person is armed and dangerous. 2. If RS that person is armed and dangerous, officer can pat down the outer layer of the clothing.

Question 85

Terry Frisk and Finding Contraband

Answer 85

1. If the officer finds contraband without moving/further feeling the object in the person’s pockets, she can seize it. If officer doesn’t recognize item, cannot pursue further. 2. If officer “immediately tells” the item is drugs, they can seize it. 1. can’t conclude it’s not a weapon and continue to feel the item and recognize it as drugs. Must be immediate.

Question 86

Car Frisks Rule

Answer 86

1. if an officer is conducting a traffic stop, 2. and believes that a suspect is dangerous, 3. he may search the passenger cabin of the suspect’s vehicle, 4. limited to those areas in which a weapon may be placed or hidden—not the trunk.

Question 87

Car Frisks Reasonable Suspicion Standard

Answer 87

1. For terry stops- specific and articulable facts that inform an officer’s belief that criminal activity is present 2. For Terry frisks- specific and articulable facts that suggest a suspect is armed and dangerous. 3. Justified by a concern for officer safety **only**. It is not a general search for criminal evidence.

Question 88

Seizure

Answer 88

1. a suspect is seized only if either: 1. officer physically restrains him; or 2. the officer makes a “show of authority” and the suspect submits.

Question 89

When an Arrest Occurs

Answer 89

1. whenever the police takes someone into custody against their will for prosecution or interrogation

Question 90

De Facto Arrest

Answer 90

1. when police compel someone to come to the police station for questioning or fingerprinting. 1. but if you come voluntary, you’re not arrested.

Question 91

Standard of Proof for Arrests

Answer 91

Probable Cause

Question 92

Which offenses are arrestable

Answer 92

* all arrestable offenses per that jurisdiction's governing body * even those punishable by a monetary fine only

Question 93

Arrest Warrant and Public Places

Answer 93

1. No warrant required to arrest someone in a public place (applies to felonies) 1. warrantless arrests for misdemeanors- misdemeanor must be committed in an officer’s presence.

Question 94

When an arrest warrant is required

Answer 94

1. absent an emergency, officers need a warrant to arrest someone in his or her home. 2. to arrest someone in the home of a third party, police officers need an arrest warrant and a search warrant.

Question 95

Common Enterprise Theory

Answer 95

* If an officer is conducting a traffic stop, * and discovers evidence that suggests a common unlawful enterprise between the driver and his passengers, * he may arrest any or all of them, * based on the reasonable inference of shared dominion and control over the contraband.

Question 96

VA Arrest Laws

Answer 96

VA has codified CL rules on arrest, with some distinctions

Question 97

VA Codified Rules on Arrest for Felonies

Answer 97

1. An officer may arrest: 1. any person who commits any crime in the officer’s presence 2. anyone the officer has reasonable grounds or PC to suspect person has committed a felony not in the officer’s presence

Question 98

VA Codified Rules on Arrest for Other Crimes

Answer 98

1. officer may arrest for misdemeanor not committed in his presence when: 1. officer receives a telephone or radio message that a warrant for such an offense is on file, or 2. offense involves assault and battery, and arrest is based on PC upon reasonable complaint of an eyewitness.

Question 99

How to tackle VA Crim Pro Essay

Answer 99

1. VA law is linked to old CL rules, but growing trend is toward exceptions to misdemeanor rule so long as it involves crime that might involve violence. 2. ID common law and codified rules. Discuss strict application. Address allowing possible exceptions

Question 100

VA specific statutory exceptions to warrant requirement for arrest

Answer 100

1. motor vehicle crimes 2. shoplifting 3. warrant on file 4. public drunkenness 5. assault and battery against family or household member