Search and Seizure

Question 1

The police stop a driver for speeding. In a search incident to arrest of the driver, what rights does the passenger have?

Answer 1

Passenger can challenge the constitutionality of a stop (if lawful), but she has no standing to challenge unlawful searches as a passenger who doesn’t own the car.

Question 2

A tenant vacated an apartment because he could no longer afford the rent. To ensure that the delinquent tenant made up for past arrearages, the landlord would not let him remove his personal property from the apartment. The tenant found a temporary place to stay with a friend, who wanted to help the tenant get his property back. The tenant remembered that the apartment would be vacant the upcoming weekend and that the landlord would be out of town, so he suggested that they break into the apartment and take the property then. They drove the tenant’s pickup to the apartment, and the friend entered through an unlocked window. The friend then opened the door for the tenant, and the pair collected the personal property. While the tenant was getting ready to drive away, the friend returned to the apartment and carried out some of the fixtures to the apartment. At this point, police officers who had been alerted by neighbors arrived and arrested the pair.

What is the tenant’s best defense to a charge of burglary?

A - There was no “entry,” because as an occupant of the apartment, he consented to the entry.

B - There was no breaking, because the window was unlocked.

C - There was no intent to commit a felony.

D - He only took his own property.

Answer 2

C. Absence of intent to commit a felony is the best defense. If the tenant intended merely to retrieve his property, he would have had no intent to commit a felony when he entered the apartment and thus could not be convicted of burglary. Common law burglary consists of: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The tenant entered the apartment intending to retrieve his own property. Thus, the facts indicate that the only felony the tenant could have intended to commit at the time of entry would be larceny. Larceny consists of: (i) a taking; (ii) and carrying away; (iii) of tangible personal property; (iv) of another; (v) by trespass; (vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. Larceny element (iv) would be missing here if the tenant intended to retrieve only his own property.

Question 3

T/F: A school search will be upheld only if it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search, and the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

Answer 3

True.

Question 4

What are the warrantless search exceptions?

Answer 4

1. incident to constitutional arrests
2. automobile search
3. plain view
4. consent
5. stop and frisk
6. administrative
7. hot pursuit, exigent circumstances, evanescent evidence

Question 5

Describe stop and frisk.

Answer 5

This is when police have a reasonable suspicion of criminal activity/involvement in a completed crime, supported by articulable facts, that gives police right to detain someone for investigative purposes.

They can frisk if they have reasonable suspicion that detainee is armed and dangerous.

Question 6

T/F: An automobile stop constitutes a seizure of the automobile’s driver and passengers.

Answer 6

True. Passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.

Question 7

T/F: If police have probable cause to believe a suspect has hidden drugs in their home, they may (for a reasonable time) prevent them from going home unaccompanied to prevent the destruction of evidence.

Answer 7

True.

Question 8

To have a 4th Amend right, a person must have his own reasonable expectation of privacy with respect to the place search or item seized.

What are examples of when a person has a reasonable expectation of privacy?

Answer 8

• owned or had a right to possession of place searched
• person’s home (whether owned or had right to possess)
• overnight guest of the owner of the place searched

Question 9

Does a person have a reasonable expectation of privacy in: one’s handwriting?

Answer 9

Nope

Question 10

Does a person have a reasonable expectation of privacy in: areas outside the home and related buildings, e.g. a barn?

Answer 10

Nope.

Question 11

Does a person have a reasonable expectation of privacy in: the smell of one’s car or luggage?

Answer 11

Nope.

Question 12

T/F: D is unlikely to succeed in challenging an affidavit (search warrant).

Answer 12

True, on the basis of invalidating the affidavit. There must be a false statement, affiant recklessly or intentionally included that false statement, and the false statement was material to the finding of probable cause.

*also good faith exception to cops who obtained a warrant and it is invalid

Question 13

T/F: Violations of the knock and announce rule will not result in suppression of evidence otherwise properly obtained.

Answer 13

True.

Question 14

If there is a warrant to search for contraband on the premises, what can the police to do occupants found on the scene?

Answer 14

Police can detain occupants of the premises during a search but the search warrant does not authorize to search the people found there who were not named in the warrant.

Question 15

When can police conduct a search of passenger compartment of a car incident to arrest?

Answer 15

If at the time of the search:
- arrestee is unsecured and still gain access to interior of car
OR
- police reasonably believe that evidence of the offense for which the person was arrested may be found in vehicle

Scope of search: anywhere in passenger compartment that could hold weapon or hidden evidence

Question 16

Under plain view, when can police make a warrantless seizure?

Answer 16

• are legitimately on the premises
• discover evidence or contraband
• see evidence in plain view; and
• have probable cause to believe that the item is evidence or contraband

Question 17

The police received a tip from a reliable informant that a former student at the local university was selling narcotics. A brief investigation revealed that the former student, a college dropout, still hung around the university campus, had no visible means of support, and yet drove a large luxury car. The police picked up the former student the next time he showed up on campus, took him to the station, and questioned him all night long without a break and without letting him communicate with anyone else. When the former student tired from the interrogation, he admitted that he sold cocaine to his friend, who is a current student at the university. Based on this information, the police went to the current student’s dormitory room. When they arrived, they found the door open but no one was in the room. The police entered, searched the room, and discovered a vial of white powder. Later laboratory tests established the powder to be cocaine. The former student was then charged with the sale of narcotics. At his trial, the prosecution attempted to admit the cocaine discovered in the dormitory room into evidence.

What is the former student’s best argument for preventing the cocaine from being admitted into evidence?

A - search of the dormitory room was conducted without a warrant and without consent.

B - police arrested the former student without a warrant.

C - former student’s confession was not voluntary under the circumstances.

D - police failed to give the former student Miranda warnings.

Answer 17

His best argument for preventing the cocaine from being admitted into evidence is (C) that his confession was not voluntary.

A - the search of the current student’s dorm room appears to be an unreasonable search under the 4th Amend. Here, the former student cannot assert a possessory interest or reasonable expectation of privacy in the current student’s dorm room. So he does not have standing.

B - Police generally do not need to obtain a warrant before arresting a person in a public place, even if they have time to get a warrant, as long as the arrest is based on probable cause. Here, there was both.

C - better choice because better chance of invoking the exclusionary rule if confession is involuntary. The duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as “fruit of the poisonous tree.”

D - a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial “fruits” of the confession. So failure to give Miranda warnings here would likely permit cocaine into evidence.

Question 18

A police officer stopped a boyfriend and girlfriend on a college campus under suspicion that they were selling illegal drugs out of their backpacks. The officer asked the two some questions and then asked if he could look in their backpacks. They consented to the search, but the officer found nothing suspicious in either backpack. The officer then patted them both down and found a package of drugs taped to the boyfriend’s chest. The boyfriend and the girlfriend were charged with possession. The boyfriend pleaded guilty to possession. Prior to trial, the girlfriend’s attorney moved to suppress the introduction of the drugs at her trial. At the suppression hearing, the attorney stipulated that the girlfriend owned the drugs.

How should the court rule on the motion?

A - Against, because the girlfriend has stipulated that she owns the cocaine.

B - Against, because the search of the boyfriend’s body did not violate the girlfriend’s reasonable expectation of privacy.

Answer 18

(B) Because the girlfriend’s 4th Amend rights were not violated by the unlawful search of the boyfriend, the drugs may be introduced against the girlfriend at trial.

Here, the drugs were seized from the boyfriend as a result of a search that may have violated his 4th Amend rights. However, nothing in the question indicates that the girlfriend had a reasonable expectation of privacy in the boyfriend’s body (such as the right to exclude others from searching the boyfriend if the boyfriend had consented). Under the circumstances in this case, the girlfriend’s ownership of the drugs does not establish a reasonable expectation of privacy with regard to the search of the boyfriend.

(A) is incorrect because the defendant has the right to testify and stipulate to facts at a suppression hearing without her testimony or stipulation being admitted against her at trial on the issue of guilt. This rule allows a defendant to assert a possessory or ownership interest in illegally seized evidence just for purposes of invoking the exclusionary rule; if she fails to have the evidence excluded, she may still deny possession or ownership at trial.

Question 19

A man was tried in state court for possession of heroin. The prosecution offered in evidence five rolled-up toy balloons containing heroin, which police officers had found on a table in the man’s apartment. At a hearing on the defense’s motion to suppress, testimony was presented that established that the police had put the apartment under surveillance and had watched a police informant go to the door of the apartment, hand four balloons of heroin to the man, and leave. The police had then knocked on the apartment door, identified themselves as police officers, and demanded entrance. Having heard nothing for 30 seconds, the police had then broken down the door and entered the apartment, discovering the heroin. The police had intended to arrest the man for the purchase of heroin, a felony. When they had gotten inside the apartment, they discovered that the man had left by a back exit. He was later arrested at the nearby newsstand.

The trial court denied the motion to suppress, and the case is on appeal following the man’s conviction for possession of heroin. How should the appellate court rule?

A - Affirm the conviction on the ground that the error, if any, in admitting the heroin was harmless error.

B - Affirm the conviction on the ground that the police complied with the “knock and announce rule” even though no one was there to admit them.

C - Reverse the conviction on the ground that the man’s Fourth Amendment rights (as applied to the states by the Fourteenth Amendment) have been violated.

D - Reverse the conviction on the ground that the “knock and announce rule” was not satisfied when the police announced their presence and identity to an empty residence.

Answer 19

The appellate court should reverse the conviction on Fourth Amendment grounds. Absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment. No exigent circumstances justified the warrantless arrest or the warrantless entry into the home. If the police had reason to believe the man was destroying evidence, they could have entered the home without a warrant to prevent the destruction under the exigent circumstances doctrine. But nothing in the facts gave the officers reason to believe that evidence was being destroyed. They knocked on the door, identified themselves, and demanded entrance. They heard no response or sounds of drugs being destroyed. Thus, there were no exigent circumstances. Evidence that is the fruit of an unlawful arrest may not be used against the defendant at trial because of the exclusionary rule.