Search and Seizure Flashcards
General warrants or Rits of Assistance
- Issued on mere suspicion
- No PC
- No Judicial authorization
- No inventory/ or items to be seized
- Good till the person who wrote it dies plus 6 months
What part of the CT constitution mimics 4th Amendment?
Article 1 section 7
Judicial branch does what?
- Interprets laws
- Involves judges
Executive branch does what?
-Enforce laws-
Involves prosecutors, police, and corrections
Legislative branch does what?
Writes laws
Drafters of constitution philosophy?
- Individual rights
- The government exists from the GOVERNED consent
Bill of rights
First 10 amendments of constitution
14th amendment does what?
- Due process clause
- State and local government have to follow federal law
Judicial Review?
- Unique
- America invented it
- US supreme court has final say on what the constitution means
- They INTERPRET the constitution
4th amendment does what?
- Protects PEOPLE not PLACES
- Restricts federal government
The federal constitution acts as a what?
Basement
Our state constitution acts as what?
- A ceiling
- Gives additional rights to citizens
- CT supreme court acts as final say for OUR constitution
54-1f
- Arrest w/out warrant
- To have a constitutionally valid arrest all you need is PC
How to apply 4th amendment (3 parts)
- Government action
- Search or a Seizure
- Constitutionally protected area
What is a constitutionally protected area?
Area without a reasonable expectation of privacy
What is a Search?
An intrusion into an area where a person has an reasonable expectation of privacy, with the intention to discover evidence of a crime.
What is Seizure?
Would a reasonable person feel free to leave?
Does the constitution define reasonable?
NO
Who tells us what reasonable is?
The US supreme court
US v Katz concluded what?
Where there is a reasonable expectation of pivacy
- Was there an subjective expectation of privacy?
- Was there an objective exception of privacy?
What is objective?
Reality (what society excepts as reasonable)
What is subjective?
The persons perception of reality
What is standing?
For a person to have legal standing to challenge the constitutionality of a searcher seizure they MUST have an reasonable exception of privacy to that area or item.
Places where people expect privacy
- House (temp or permanent)
- Overnight guest
- Apartment
- Hotel room while rented
- Dorm room
- Where a person has total legal right to control access and exclude others
- Cartilage
- On your person
- Motor vehicle
- Persons belongings
- Thermal imaging or technology not available to public
- GPS tracking of MV
- Cell phone or computer
- Motor home
- Homeless persons belongings
4 part Cartledge test
- Proximity to home
- Whether an area is in an enclosure around a home
- Nature of the use of the area
- Steps taken to protect the area
Places where the is NO expectation of privacy
- Abandoned property
- Abandoned MV
- Property discarded while being pursued by PD
- Property left in a public place not out of necessity
- Garbage at the curbside
- Business guest at a home
- 3rd party records
- Physical attributes on public display
- Arial surveillance of a persons property in navigable airspace using the NAKED eye
- Woods or open fields
- Motor vehicle in which you are a passenger
- Use of a flashlight to look in a car
- Prison cell
- VIN # of a MV
- License plate
- Common hallway
- Conversations overheard in adjacent apartments
- Any place open to the public
Probable cause
The facts and circumstances that would lead a reasonable to believe that a crime has been or is about to commited
With probable cause can a innocent person be arrested?
YES
Objective standard
Reasonable people can reasonably disagree
Needs for PC
- Must be based on the “totality of the circumstances”
- Based on “all the officers training and experience”
3rd party searches
- Evidence is admissible even if obtained illegally only if the person is not acting as an agent for the government
- Who determined the action?
- Who determined to give the evidence to the police?
- Was the citizen prompted to give the evidence to the police?
- Prior knowledge by government
- Request or authorization by police for the person to do it
A warrant is what?
Per say REASONABLE
No warrant is what?
Per say UNREASONABLE
Is the constitution silent to what happens when the 4th amendment is violated?
YES
What is the main purpose of the exclusionary rule?
To deter unlawful police conduct
Conclusion of Weeks v US
Exclusionary rule: allowed evidence to be thrown out if obtained while violating 4th amendment
Silver platter doctrine
Federal courts could use evidence obtained illegally if obtained via state officers
What was the conclusion to Mapp v Ohio?
Exclusionary rule applied to EVERYONE
Fruits of poisonous tree
Any evidence derived from an unconstitutional search or seizure gets thrown out
US v Leon and the good faith exception
Concluded the that when an officer i good faith applies for a warrant and then is signed by the prosecutor and judge the EXCLUSIONARY RULE does not apply
State v Marsala
No good faith exception in CT
Inevitable discovery doctrine
State must prove by preponderance that the evidence seized in violation of the 4th/5th amendment would have been inevitably discovered by other means
Important requirements for Inventory search
- Have a department policy
- Person must be taken into custody
- Department policy must be complied with ROUTINELY
Reasons for Inventory search
- Protection of property owners
- Protection of Police from claims of stolen property
- Protect police from danger within vehicle
Whats the crux of inventory searches?
EVERYONE must FOLLOW it
Exceptions without a warrant
- Inventory
- Plain view
- Investigative detention (Terry stops)
- Consent
- 3rd party consent
- Exigent circumstances = Probable cause + Serious crime and evidence distraction, or Life in danger, or Flight of suspect
- Care taker function
- inventory
- Search incident to an arrest
- Motor vehicle exception
- Hot pursuit
Plain view test (2 part)
- Your at the location legally at the time of the observation, Lawfully in position to view the item at the time of viewing
- Probable cause to seize the item and the PC is immediately apparent.
Arizona v Hicks taught us what?
Cant move items during plain view searches
Plain view
Immediately apparent
Terry stops require 2 things
- Reasonable suspicion for the SEIZURE of the person
- A second reasonable suspicion that the person might be armed or dangerous for the pat down itself
What 3 things go hand in hand?
- Drugs
- Violence
- Weapons
Reasonable Suspicion
- Based on “totality of circumstances”
- Based on “training and experience”
Ways to establish reasonable suspicion
- Personal observations by the Police officer
- Credible 3rd party info
- Furtive or suspicious behavior
- Unprovoked flight or other evasive action
- Unprovoked flight ALONE is not enough
- Unprovoked flight in an high crime area IS enough
- Type of neighborhood
- Criminal activity occurring in that area
- Physical descriptions
- Temporal or spacial proximities to a crime
- Prior knowledge of suspect and criminal history
- Totality of circumstances
- Training and experience
Alabama v White
An anonymous tip that is predictive in nature and corroborated by law enforcement is sufficient for reasonable suspicion
Florida v JL
Anonymous tips that are merely descriptive in nature are not enough for reasonable suspicion
Can police start an investigation for any reason?
YES
3 ways to be seized
-Physical force
-Submission to authority (first 2 required by 4th amendment)
Under CT constitution a show of force can be a seizure
State v Hill
The mere approach of an officer does not constitute a seizure
Duration of a Terry stop
- Brief and to maintain status quo
- Temporary and last no longer than necessary
- Once suspicion has been alleviated the person must be let go
- You cannot take someone on a terry stop to the police department
What are the 2 reasons you can stop a motor vehicle?
- Reasonable suspicion
- Probable cause
Your actions/facts during Terry stops
- Brief status quo
- Once suspicion has been alleviated the person needs to be let go
- There is NO bright line on the duration of Terry stops
- All the info you used to acquire your reasonable suspicion has to be DOCUMENTED
Dog sniffs and Terry stops (Vehicles)
Dog sniffs during a terry stop are permitted during terry stops as long as the time to get the dog does not exceed the time required for the justifiable stop
Length of Terry stops
- You must diligently pursue a means of investigation to either dispel or prove your reasonable suspicion for the terry stop
- A one hour detention has been deemed reasonable per CT courts
Where can police officers do Terry stops?
ANYWHERE as long as you have reasonable suspicion
Using a witness to ID suspect during a Terry stop
- The best practice is to have it made where the suspect was originally stopped
- By having the witness goto the suspect you avoid the risk of turning a terry stop into an arrest
- BRING THE WITNESS TO THE SUSPECT
Use of force during a Terry stop
- Under certain circumstances a person detained may be HANDCUFFED and placed in the BACK OF THE CRUISER
- Removing suspects during a stop at gun point does not necessarily constitute an arrest
- The court will decide under “the totality of circumstances” to decide if the stop was an actual arrest
Automobiles and Terry stops
- Police can order the driver out of the vehicle for any reason during a justified stop
- Police can also order the passengers out for any reason
Terry pat down of a vehicle
Police can pat down a passenger compartment of a vehicle for weapons LIMITED to the areas where a weapon might be hidden if they have reasonable suspicion that the detainee is dangerous and may have access to a weapon
Spot checks and Road blocks
-As long as they do not single out individual motorists but effect all motorists equally are constitutionally permissible
THEORY: Everyone is treated fairly!
Spot checks and Road blocks have been allowed for?
- Checkpoints and to detect drunk drivers
- License and Registration checks
- Check points to detect illegal immigrants
- Gathering information on crimes committed by others
Do checkpoints that are looking for evidence of an ordinary crime violate the 4th amendment?
YES
Consent
- An exception to the 4th Amendment
- A consent to search must be FREELY and VOLUNTARILY given and cannot be the product of THREATS, DURESS, OR COERCION.
- A statement that the police will obtain a search warrant if consent is not given is COERCION and will almost always invalidate a search
Do police officers have to inform a person that they have the right to NOT consent to a search?
NO
3rd party consent
- The consent of a person who possesses COMMON authority over premises/ or affects is a valid against the absence of the non-consenting person with whom authority is shared.
- MUST HAVE COMMON AUTHORITY
Apparet authority and Consent facts
- Under the 4th amendment a consent to search is lawful if the police reasonably believe the person consenting to the search has authority to do so.
- Being invited into someones home is consent to enter the home.
- When 2 people share a common authority of an area/item either one can withdraw consent.
- A person has to be left in a position to withdraw consent.
- Consent can be LIMITED.
Arizona v. Gant
You cannot just search a car incident to an arrest if the charges don’t call for further search of the car (drugs, guns, etc..)
California v. Riley
You can’t search someones cell phone without a warrant unless you have extreme circumstances
Exigent circumstances test
Probable cause + Serious crime (both required) and Evidence destruction or Someone will escape or Someone will be hurt/needs help
Care taker function
So long as entry into the vehicle is to secure the owners property for safe keeping and is not a exploratory search the police have the legal right to enter the vehicle.
Search incident to an arrest
- If you have probable cause to arrest someone you can search the immediate area also
- The search of a person and his immediate area is allowed even if it is in his own home.
- Immediate area = the area in immediate control of the arrestee in which he may gain control of weapon or destroy evidence.
- Which includes his belongings.
Can you the police accompany someone to get there belongings within their house if they are under arrest?
YES (State v. Shaw)
Protective sweep (“Buie sweep”)
police can conduct a protective sweep of a house where an arrest is made if they have reason to believe that the area to be sweep harbors a person posing a danger to them or others.
-ONLY AREAS A PERSON CAN HIDE
What are the 2 exceptions to search a vehicle incident to an arrest?
- The arrestee is within reaching distance of a passenger compartment at the time of the search and NOT under police control (BAD IDEA)
- If it is reasonable to believe that vehicle contains evidence of the OFFENSE of the arrest
Motor Vehicle Exception
- VEHICLE MUST BE MOBILE
- If the vehicle is mobile you can search the car without an warrant so long as you have PROBABLE CAUSE
- You may open closed containers
- THE SCOPE OF THE SEARCH will be restricted to the object(s) you are looking for and the places they might be found
- MUST take place at the scene of the incident
- The smell of MARYJUANA is probable cause to search the motor vehicle
Carroll Doctrine
A person has a lesser expectation of privacy in a motor vehicle and because they are so easily moved there is built in EXIGENCY
Peyton/ Riddick rule
4th amendment prohibits police from making a warrantless non-consensual entry into a persons home to arrest him for a felony w/out an emergency (exigent circumstances)
If you have an arrest warrant with the ADDRESS of the suspect can you force the door if you do not think he’s home?
- YES but highly advised to not do it with MISDEMEANORS
- (FYI only with felony warrants)
Plain feel doctrine
When a police is conducting a lawful terry top and during the pat down of the person feels what he knows is not a weapon but due to its mass and contour knows IMMEDIATELY that its contraband without FURTHER MANIPULATION.
The emergency doctrine
-Entry into home does not have the probable cause requirement of exigent circumstances
-You are entering a home for one reason which is AID SOMEONE INSIDE
The TEST:
-Under the totality of circumstances would a well trained officer reasonably believe that a warrantless entryway necessary to assist the person inside in need of immediate aid
State v. Santiago and the Hot pursuit doctrine
The defendants arrest did not immediately follow the defendants appearance at his doorstep after the knock on the door
(YOU CANT JUST KNOCK AND GRAB PEOPLE)
Miranda and the 5th amendment
- The right against self incrimination
- Applied to TESTIMONIAL evidence only
- The supreme court created the “Miranda” warning to protect persons right to self incrimination
- If no MIRANDA WARNINGS are given when REQUIRED there is an IRREFUTABLE presumption of involuntary confession. (Cannot be argued!)
Miranda math equation
Miranda(2) = Custody(1) + Interrogation(1)
Custody defined
- Taken into custody or deprived of his freedom by authorities in any significant way
- Would a reasonable person in the suspects position believe that he was free to leave?
- This is an objectively reasonable test in which the court will look at the “totality of the circumstances”
Things with Custody taken into account
- Suspects age
- Place where the interrogation takes place
Terry stops and its relation to custody
Are not deemed custody for miranda purposes
Are traffic stops deemed custody?
- NO
- A reasonable person would feel to leave after they received the ticket
Undercover agents/ Informants
- If the defendant talks to an undercover agent or informant without knowing he is talking to a law enforcement officer NO custodial interrogation has taken place
- Rationale: A person would feel compelled to speak in a “police dominated area”, but when the suspect speaks freely to a person who he does not know is a police officer there is no “coercive” atmosphere.
- There can be 6th amendment violation to council with an undercover agent
Interrogation defined
Words or actions on the part of the police officers that THEY know or SHOULD know are designed to elicit an incriminating response
If a person invokes there right to remain silent what do you do?
IMMEDIATLY stop questioning
After waiting a “reasonable amount of time” can the police reassume questioning?
YES
What is the 6th amendment to us?
The right to counsel
If a defendant invokes his right to council how do you re-initiate questioning?
-The person has to re-initiate
or
-The attorney must be present
You must re mirandize!!!
When does the 6th amendment right to council kick in?
Arraignment
Arraignment defined
Start of adversarial process
Can a confession taken in violation of miranda be used for anything?
Yes to impeach a defendant (prove them a liar) only if they TESTIFY!
Situations where Miranda is not required
- Terry stops/ general on scene questioning
- Volunteered statements
- Routine booking questions
- Traffic stops and the routine questions that accompany
- Public safety exception (Looking for a gun, ect..)
- *Interrogation reasonably prompted by concern for public safety**
Waivers for miranda
- Has to be knowing and voluntary
- Can be expressed or implied
- Silence alone cannot be taken as a waiver
- Must have evidence suspect UNDERSTOOD nature of rights he was waiving
Expressed waiver
Signs form or states he understands and he will speak with you
Implied waiver
Saying he understands and starts answering your questions is an implied waiver
Invoking of rights
-Must be clear and unequivocal
-Can invoke anytime
TEST:
A reasonable officer in the circumstances would understand that this is a request for an attorney
Can someones attorney invoke the defendants rights?
NO
