Search and Seizure

Question 1

4th Amend protects

Answer 1

1) unreasonable
2) searches
3) seizures

Question 2

Arrests and Detentions

Answer 2

1) probable cause
2) warrant not required for public place
3) warrant required for in-home, non emergency arrests
4) need probable cause to compel to come to station for (a) fingerprinting or
(b) interrogation

Question 3

Terry Stops: Investigatory detentions

Answer 3

1) reasonable suspicion based on totality of circumstances
2) supported by articulable facts
3) criminal activity

Question 4

Terry Stops: automobile

Answer 4

1) reasonable suspicion
2) law has been violated
EXCEPTION: check-point stops (DUI, Border-crossings)

Question 5

Dog Sniffs and Traffic Stops

Answer 5

1) routine traffic stops
2) dog sniff OK b/c not a search
3) so long as police don’t extend the stop beyond the time needed to issue a ticket/conduct normal activities
4) dog alert = probable cause for a search
BUT cannot use a dog directly outside the home of a suspected drug dealer = search

Question 6

Search and Seizure Steps

Answer 6

1) Governmental Conduct?
2) Reasonable expectation of privacy?
3) Did the police have a valid search warrant?
4) If no valid warrant, does an Officer’s good faith defense save the defective search warrant?
5) Do any exceptions to the warrant requirement apply?

Question 7

Governmental Conduct

Answer 7

1) publicly paid police or individual acting at the direction of the public police
2) privately paid police do not constitute government conduct unless they are deputized with the power to rescue

Question 8

Reasonable Expectation of Privacy: Standing

Answer 8

1) you own the premises searched
2) you live on the premises searched (no ownership required)
3) invited overnight guests (not homeless bums inyour basement)
4) you own the property seized: only if you have a reasonable expectation of privacy in the item or area searched

Question 9

Reasonable Expectation of Privacy: No standing

Answer 9

1) anything you hold out to the public everyday
Examples:
a) sound of your voice
b) style of your handwriting
c) paint on the outside of your car
d) account records held by a bank
e) monitoring the location of your car on a public street or in your driveway (NOT attaching a GPS to your car, that = search)
f) anything that can be seen across the open fields
g) anything that can be seen from flying over in public airspace
h) the odors emanating form your luggage
i) your garbage set-out on the curb for collection

Question 10

Valid Search Warrant

Answer 10

1) probable cause

2) particularity

Question 11

Probable cause: Search warrants

Answer 11

Fair probability that contraband or evidence of a crime will be found in the area searched

Question 12

Particularity: Search warrants

Answer 12

The warrant must state with particularity the

1) place to be searched
2) things to be seized

Question 13

Informants and Warrants

Answer 13

1) affidavit or probable cause can be based on informant info, so long as the sufficiency of the info is determined by the totality of circumstances
2) informant’s credibility and basis of knowledge are both relevant factors in the “totality of circumstances” test
3) can be based in part on informant’s tip even if informant is anonymous

Question 14

Knock and Announce

Answer 14

1) generally an officer must “knock and announce” before entering
2) EXCEPT if knocking and announcing would be:
(a) dangerous
(b) futile
(c) inhibit the investigation
3) biggest fear of inhibiting the investigation = destruction of evidence

Question 15

Officer’s Good faith Defense

Answer 15

generally officer’s good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements

Question 16

Officer’s good faith defense exceptions

Answer 16

1) affidavit underlying the warrant is so lacking in probable cause that not reasonable police officer would have relied on it
2) affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it
3) police officer or prosecutor lied to or mislead the magistrate when seeking the warrant
4) magistrate is biased and therefore has wholly abandoned his or her neutrality

Question 17

Search incident to arrest exception

Answer 17

1) arrest must be lawful
2) arrest and search must be contemporaneous in time and place
3) allowed to search the person and the area’s within their wingspan
4) if in an automobile, may only search the interior of the auto if the arrestee is unsecured, and still may gain access to the interior of the vehicle OR police reasonably believe that evidence of the offense for which the person was arrested may be found.
5) NOTE: community caretaker exception justifies warrantless search if an officer faces an emergency that threatens health or safety of an individual or the public

Question 18

Automobile exception

Answer 18

1) probable cause: may arise after car is stopped BUT must arise before anything is searched
2) may search the entire car including interior and trunk.
3) may open any package, luggage, or other container which could reasonably contain the item they had probable cause to look for
4) may search both driver and passenger’s belongings

Question 19

Plain View exception

Answer 19

1) legitimately present at the location where he or she does the viewing of the item seized
2) immediately apparent that the item is contraband or fruit of a crime

Question 20

Consent exception

Answer 20

1) consent must be voluntary
2) when 2 or more people have an equal right to use a piece of property, either can consent to a warrantless search
3) if both people are present and only one consents and the other refuses, the the one who does not consent controls

Question 21

Stop and Frisk (terry) exception

Answer 21

1) investigating suspicious conduct
2) reasonable suspicion which is less than probable cause
3) pat down of the outer clothing and body to check for weapons
4) if probable cause arises during the stop, officer may arrest and may conduct a full search incident to that arrest
5) if vehicle properly stopped for a traffic violation, and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may
(a) conduct a frisk of the person
(b) search the vehicle so long as it is limited to the areas in which a weapon may be placed

Question 22

Evanescent Evidence Exception

Answer 22

evidence that might disappear quickly faster than it would take to get a warrant
EXAMPLE: scrape under fingernails (worried about washing hands) BUT need to get a warrant before taking a blood sample for a DUI if practical

Question 23

Hot Pursuit Exception

Answer 23

hot pursuit of a fleeing felon, police must be no more than 15 min. behind or it is not hot pursuit
NOTE: they may enter ANY home without a warrant and any evidence they find in plain view falls under the plain view exception and will be admissible

Question 24

Inventory Searches Exception

Answer 24

Before incarceration police may search

1) personal belongings
2) arrestee’s vehicle

Question 25

Public School Searches

Answer 25

1) students engaged in extra-curricular activities may be randomly drug tested
2) student’s affects like purses or backpacks may be searched to investigate violations of school rules
3) School search only reasonable if:
(a) moderate change of finding evidence of wrongdoing
(b) measures adopted are reasonably related to the objectives of the search
(c) search is not excessively intrusive

Question 26

Warrant Exceptions

Answer 26

1) Search incident to arrest exception
2) Automobile exception
3) Plain View exception
4) Consent exception
5) Stop and Frisk (terry) exception
6) Evanescent Evidence Exception
7) Hot Pursuit Exception
8) Inventory Searches Exception
9) Public School Searches

Question 27

Wiretapping and Eavesdropping

Answer 27

1) warrant
2) EXCEPTIONS:
(a) personal conversations with someone wearing a wire (society assumes the risk that the person to whom he is speaking with either consent to the government monitoring the conversation or will be wired)
(b) no 4th amend. right when no attempt to keep the conversation private