Search & Seizure Flashcards
Exclusionary rule’s application to quasi-criminal proceedings
Grand jury can question witness based on illegally-obtained evidence, exception to exclusionary rule in cases whereby officer who conducted search was aware of person’s parole status, evidence admissible in forfeiture proceedings but not in criminal proceedings, exclusionary rule is inapplicable in civil deportation hearing
Exclusionary rule
This rule prohibits the introduction of evidence obtained in violation of 4th, 5th, and/or 6th amendment rights. Illegally obtained evidence is inadmissible at trial but can be used for impeachment purposes. Limitations: not applicable to grand juries, civil proceedings, internal agency rules, and parole revocation proceedings / good faith reliance on law, defective search warrant, or clerical error / impeachment purposes / Miranda violations
Exclusionary rule applies to government conduct only
Evidence obtained by private persons is excluded, unless they are acting as instruments or agents of the gvt. Exclusionary rule doesn’t apply if third party seizes object then calls police to conduct separate search with respect to same object.
Good faith exception to exclusionary rule
Evidence admitted even in unreasonable search or seizure due to act in good faith. Exclusionary rule deters police misconduct, protects illegal use of evidence..act in good faith doesn’t deter anything. Facially deficient warrant is plainly invalid. Ct makes mistake, not judge, exclusionary rule doesn’t apply. Compliance vs reliance - can rely on precedent, not bad faith.
Police reliance on error on own records can be good faith
Officers innocent of wrongdoing where warrant was recalled 5 months previously,mistake of another police database, 4th amendment violated but exclusionary rule doesn’t apply because no bad faith. RELIANCE on another police agency database.
Evidence obtained in Mexico used in US prosecution
4th amendment doesn’t apply because it states “the people” which refers to a class of people part of a national community, Mexican citizen not part of these “people”
4th amendment protects reasonable expectation of privacy
Legitimate, reasonable expectation of privacy has 2 prongs: must expect it, society must expect it as reasonable. What a person knowingly exposes to public isn’t a subject of 4th amendment protection.
Trespass theory/doctrine
Constitutes a search if there was trespass
Is a warrant needed to search/seize abandoned property?
No
Possession of property and liberty of person
4th amendment protects interests in possession of property and liberty of person. Can’t deprive person’s possessory interests in their property or their liberty interest. Seizure may take place but no 4th amendment violation if no invasion of individual’s privacy
Areas protected from search & seizure
Business and commercial property, curtilage, inside of car, squeezed bag are covered/4th amendment violation. Not covered: open fields/skies, prison cell, exterior of vehicle including VIN, GPS tracking device of vehicle, dog sniff, beeper, pen registers.
Sensory enhancing equipment
Enhanced human vision/slight enhancement doesn’t reveal intimate details as to raise constitutional concerns, not a 4th amendment search
Warrantless thermal imager ok?
No, could only obtain the info if search done in house, constitutes a search, there doesn’t have to be trespass
Katz test
Whether the individual has an expectation of privacy that society is prepared to recognize as reasonable
Exigent circumstances
Circumstances requiring an extraordinary or immediate response; an exception to the prohibition on warrantless arrest or search when police officers believe probable cause to exist and there is no time for obtaining a warrant.
Knock and announce
Requirement that a police officer must first knock and announce his intention before he enters someone’s home in the execution of a valid warrant.
Probable cause - warrantless arrest based on informant
Warrantless arrest based on info from informant has probable cause if magistrate reasonably infers that the informant gained the info in a reliable way.
Probable cause - search warrant based on informant’s info
2 part test in Spinelli must be met so magistrate can conclude that informant’s info provides p/c for search 1) informant’s reliability 2) informant’s basis of knowledge.
Traditional standard/today’s law: magistrate must have substantial basis for concluding that the search would uncover evidence of wrongdoing. 2 prong test can’t determine reliability of an anonymous person.
Probable cause - falsehoods in search warrant affidavit
Defendant can challenge an affidavit that is facially sufficient. Must show there is a false stmt made knowingly and intentionally, or with reckless disregard for the truth, and that the false stmt is needed to show p/c, to invalidate the affidavit.
Probable cause - disclosure of informant’s identity
Officers don’t have to disclose informant’s identity if trial judge is convinced by evidence that the officers relied in good faith upon credible info supplied by a reliable informant
Probable cause - official channels
Officers called to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. However, where the contrary is true, can’t rely on officers to make arrest - illegal arrest
Plain view doctrine
Authorized seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior 4th amendment justification and who has probable cause to suspect the item is connected with criminal activity
Probable cause - anticipatory warrants
Anticipatory warrants require magistrate to determine (1) that it is now probable that (2) evidence of a crime or a fugitive will be on the described premises (3) when the warrant is executed. Probability determination for a conditioned anticipatory warrant looks to likelihood that the condition will occur and thus that a proper object of seizure will be on the described premises. To comply with 4th amendment probable cause requirement, 2 prerequisites of probability must be satisfied. (1) if triggering condition occurs there is fair probability that evidence of crime will be found in particular place, and (2) probable cause to believe the triggering condition will occur.
Warrant preference
When practical, police must obtain judicial approval of searches and seizures. Strong preference to do so when practical.
Neutral & detached magistrate
Issuing Magistrate must meet 2 tests - must be neutral and detached, must be capable of determining whether probable cause exists for the requested arrest or search. Clerks are capable of this.
Search warrant; description of place to be searched
Officer must be able to ascertain and identify the place intended with reasonable effort. Common practice is to identify premises in an urban area by street address. Must be objectively understandable and reasonable.
Search warrant; description of things to be seized
Must have particularized description. This prevents (1) general searches (2) seizure of objects on mistaken assumption that they fall within magistrate’s authority (3) issuance of warrant on loose, vague or doubtful bases of facts.
Search warrant; time of execution- day v night
Many jurisdictions allow search warrants to be served only in daytime unless it specifically states nighttime. For night, must have concurrence of 2 magistrates.
Knock-notice
Officer must first knock and announce his presence and authority - measure time by whether they had enough time to get to the door. To justify a no-knock entry, officer must have reasonable suspicion that knocking and announcing would be dangerous or futile or would inhibit effective investigation of the crime by allowing the destruction of evidence.
Detention and search of persons on premises
Need probable cause/articulable basis for suspecting criminal activity to execute warrant. 7/10ths of a mile is the standard - can detain someone inside home or immediately outside (close proximity) but not if they leave or get past 7/10ths of a mile.
Can you handcuff someone while executing warrant?
Yes; reasonable because minimizes risk to officers and person handcuffed, government interests outweigh the intrusion.
Presence of third party okay during execution of warrant?
Yes, as long as they aid in me execution of the warrant, such as identifying stolen property. Media not ok.
Securing premises while warrant obtained
Ok to do so as long as officers have probable cause, good faith that there is criminal activity.
Protective sweep of adjacent areas/structures for officer safety
Ok as long as there is probable cause. Evidence found ok if in plain view.
Does a search warrant impact 5th amendment rights?
As long as the individual testifies voluntarily, no
Search warrant valid if for innocent 3rd party?
No. 4th amendment forbids issuance of warrant to search for items of one not suspected of crime, even if that evidence helps investigation.
What is needed to make a warrantless arrest?
Probable cause
Ok to arrest all occupants if drugs found in vehicle?
There must be evidence of criminality to have probable cause for constructive possession of drugs to arrest all occupants in vehicle.
Warrantless arrest for minor offense ok?
At common law need (1) offense occurred in officer’s presence (2) offense constitutes a breach of the peace. However, today 4th amendment doesn’t require breach of peace. Also, if there is probable cause to believe person committed minor crime, ok to arrest.
Ok to use deadly force to effectuate arrest?
Yes; officer must keep in mind the severity if the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Also, officers’ actions must be objectively REASONABLE in light of the facts and circumstances confronting them.
Reasonable TAT to take arrested person before magistrate?
Must be prompt i.e. within 48 hours of arrest
What is the permissible scope of a search incident to an arrest?
Ok to do search to disarm arrestee, prevent danger to officer, preserve evidence. Probable cause needed - ok to search their person or area in their immediate control. Rational for search of their person or area in their immediate control incident to arrest is to look for weapons or evidence of a crime
Ok to monitor movements of arrested person?
Yes - as long as it is voluntary movements of the arrested person and judgment of officer dictates it is necessary.
Ok to do inventory search of bag contents of arrested person or possessions of person at time of detention?
Yes - ok as long as the search serves legitimate governmental interests which outweigh the individual’s 4th amendment interests
Ok to draw blood for blood alcohol level without warrant?
Yes - blood alcohol level decreases in time, warrants take too long
Ok to conduct surgical intrusion without warrant?
Case by case basis - must weigh individual’s privacy and security interests against society’s interests in conducting the procedure
Jail strip searches ok?
Yes as long as they are reasonable and not intrusive/invasive. Left to discretion of officers.
What is needed to arrest?
Probable cause. Rationale is to prevent threat to officer safety and to discover and preserve evidence. Can do search before arrest if there is probable cause.
What is a seizure?
Application of physical force by a law enforcement officer or the submission to the assertion of authority. Anytime an officer accosts an individual and restrains his freedom to walk away, he has seized that person. Seizure AKA detention
What is a search within the meaning of the 4th amendment?
Legitimate reasonable expectation of privacy OR physical trespass.
What is needed to do a seizure/detention and what gives the right to frisk a detainee?
Must have particularized reasonable suspicion that criminal activity is afoot or that D is armed and dangerous. Nature of crime committed is what supplies the particularized suspicion
Totality of circumstances
Must take into account the whole picture, whole picture must provide officers a particularized suspicion and objective basis for suspecting the particular person of criminal activity before conducting a stop. 2 elements: assessment must be based on all circumstances AND the process must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.
Stop and frisk
The right of a police officer to make an on the street stop, interrogate and pat down for weapons
Can a detainee withhold identity from police?
If stopped under Terry, shall identify himself. Arrest ok if refusal to give name.
When can an officer stop a car?
When officer has probable cause to believe that a traffic violation has occurred.
Consensual encounters
Rule is whether a reasonable innocent person would feel free to leave. No warning of when someone is free to go after traffic offense, before an officer attest to engage in consensual interrogation. This warning not necessary prerequisite to voluntary consent. Requiring such warnings would be impractical.
Is a car passenger on a traffic stop “seized”?
Yes - when officer makes a traffic stop he seizes a passenger and driver within meaning of 4th amendment. Officer can’t be expected to let people wander off - can detain them and once detained it is reasonable to do a pat search.
What objects can be searched in a frisk?
Cannot manipulate object when doing Terry pat. Can only search hard objects for weapons.
Can officers frisk occupants on a non-criminal traffic stop?
Yes as long as 2 prerequisites to a Terry frisk are met:
(1) lawful stop
(2) grounds for a frisk based on totality of circumstances
What are the durational limits of a detention?
Must examine whether police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly
Detention based on anonymous tips
Anonymous tip from informant must demonstrate informant’s knowledge, veracity, reliability or credibility of concealed criminal activity bc remaining anonymous raises suspicion.
When can a Terry stop be made to investigate a suspicion that someone is wanted for a completed felony?
When there is a reasonable suspicion grounded in specific and articulable facts that the person was involved in or wanted in connection with a COMPLETED felony.
Is it okay to conduct a traffic stop for drug trafficking?
Yes - must look at totality of circumstances, not individual factors showing reasonable suspicion. Look at whole picture for reasonable suspicion.
Is “flight” a basis for detention?
The circumstances must be sufficiently suspicious enough to warrant further investigation for detention. Being in high crime area not enough. Being in high crime area and flight could support a reasonable, particularized suspicion that the person is committing a crime. Must look at circumstances to see if there is a reasonable, particularized suspicion of crime.
Is on the scene fingerprinting permissible?
Yes, if (1) there is reasonable suspicion that the suspect has committed a criminal act, (2) there is a reasonable basis for believing that the fingerprinting will establish or negate the suspect’s connection with that crime, and (3) the procedure is carried out with dispatch.
Can evidence or contraband in plain view be seized?
Yes - officer must be lawfully present within premises to make an arrest, can observe certain items not within the immediate control of the arrestee, must be immediately apparent to the police there is evidence before them, discovery of evidence in plain view must be inadvertent - exception: inadvertence not needed if item found within area/duration/scope of warrant
How specific does warrant need to be to search and seize?
Need particularized description, must be pre existing probable cause. Can’t do a general search.
What is probable cause?
Reasonable belief the items will be there based on the totality of the circumstances.
Does plain view doctrine allow the moving of an object?
No - this would be an unreasonable search, can’t move, pick up, etc. can only look at what is in plain view and what is immediately apparent. Officer exceeds the scope of plain view when things are manipulated.
Is a warrantless search of a dwelling permitted with probable cause of crime or narcotics?
Only in a few situations, the state must prove there is an exigency, no time to get a warrant bc narcotics may be removed, hidden, or destroyed for example.
Can officers investigate a burning building? What about after the burning?
Burning building creates exigency circumstances justifying authorities to enter to fight the fire and allow a reasonable time to investigate the cause of the fire. However, later entries without consent require a warrant.
Does the 4th amendment allow police to make a warrantless and nonconsensual entry into a private residence to effect a routine felony arrest?
Not permitted in the absence of exigent circumstances. Any evidence found during this unpermitted entry cannot be admitted into evidence at trial.
Can officers make warrantless entry if taking time to get a warrant would endanger their lives or lives of others?
Yes
Hayden hot pursuit rule
Police can pursue suspect without warrant as long as taking time to get the warrant would put officers or others in harms way.
How to determine when an exigency exists.
Consider the gravity of the underlying offense for which the arrest is being made. There is no exigency in a minor offense.
What entails a lawful search?
Probable cause AND (warrant or exigency)
Can officers enter home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury?
Yes
Can police rely on exigency when they themselves created the emergency?
No - exigency circumstances rule can be used to uphold a warrantless search only if a police officer doesn’t gain entry into a residence by an actual or threatened violation of the 4th amendment
Reasonably foreseeable doctrine
Whether it was reasonably foreseeable that the officer’s actions would create the exigent circumstances.
Is it ok to draw blood without warrant?
Only for DUI’s due to exigency
Is a search conducted pursuant to a valid consent constitutionally permissible?
Yes. The state need not prove that D had knowledge that he could refuse consent to search
officer states he has a warrant and search, but there was no warrant. Is this a valid search?
No. This is coercion. Where there is coercion there cannot be consent. Search can’t be justified on basis of consent when the consent has been given after the officer said he had a warrant.
What is the standard for measuring the scope of a suspect’s consent?
Objective reasonableness / Jimeno principle - the scope of the search is generally defined by its expressed object.
Can a third party allow a warrantless entry for search?
Yes - If voluntary consent is obtained either from the individual who owns the property or a third party who possesses common authority over the premises. Common authority is mutual use of the property by persons generally having joint access or control for most purposes, can be shown by having a key. Co-inhabitant can permit the common area to be searched.
Landlord rule
Landlord can’t consent to search of his tenant’s premises even if he has some right of entry for the purposes of inspecting or cleaning the premises
Hotel rule
Hotel employees cannot consent to a search of a particular room during the period in which it has been rented by a guest.
Can joint tenant authorize search of the whole place even if they occupy separate bedrooms?
Yes
If both husband and wife are present and one refuses consent and one provides consent, is search valid?
No, need joint consent
Automobile exception
This is the exception to the requirement of a warrant if a police officer has PROBABLE CAUSE to believe that a vehicle contains evidence of a crime or contraband. Officer can search the entire vehicle.
Does automobile exception to warrants apply to motor homes?
Yes - for 2 reasons. (1) autos are mobile and can be taken away before a warrant is issued. (2) autos are subject to regulations that lower the owner’s expectation of privacy.
Does automobile exception require probable cause and exigency?
No. Only probable cause
Can officers search 3rd party’s containers in a car?
Yes - as long as they have probable cause to believe the container has narcotics.
Are impound inventory searches permissible?
Yes - they protect owner property and officer safety.
Can a closed container be opened during an impound inventory?
Yes - if officers are unable to ascertain contents from exterior. They must open with guidelines of admin rules: (1) lawful arrest of driver (2) necessity for impounding car (3) inventory of contents of vehicle (4) discovery of evidence must be inadvertent
Search incident to arrest can include interior if vehicle?
Yes - anything within reaching distance bc arrestee may destroy evidence or retrieve a weapon. Also applies to recent occupant.
Is it reasonable for officers to search a car if weapons are visible in plain view?
Yes - this is ok, for officer safety.
Is it ok to order driver/passengers out of car or to stay in car if there is no reasonable suspicion that they pose a threat to officer safety?
Yes - there doesn’t have to be reasonable suspicion, this can be done for officer safety.
Can police use a drug detecting dog on a routine traffic stop?
Conducting a dog sniff wouldn’t change the character of a LAWFUL traffic stop executed in a reasonable manner, unless the dog sniff itself infringers on suspect’s constitutionally protected interest in privacy.
How is probable cause determined?
By the totality of the circumstances
Does a drug detecting dog provide probable cause to search a vehicle?
Yes - dog sniff is ok as king as there is probable cause
Is it ok to use a drug detecting dog at the door of someone’s house?
No - this is curtilage, you are on their property so it is a search. Officer can knock but not with dog.
Is it ok to temporarily seize mail?
Yes, however, at some point the detention of mail could become an unreasonable seizure of “papers” or “effects” within the meaning of the 4th amendment. In Van Leeuwen 1 day was ok.
Is it ok to temporarily seize luggage?
Yes, only for 90 minutes
Ok to search a business without a warrant?
Yes - no probable cause needed bc the business needs to be complaint with the administrative code and if they ask for a warrant the admin code will justify the warrant
Rules for border & checkpoint stops and searches
Ok the search any person or item entering US without probable cause, ok to search vehicle without reasonable suspicion. Reasonable suspicion needed to check license and registration. Brief questioning at permanent checkpoint away from border ok but need probable cause to search car. DUI checkpoints are ok bc minimal intrusion on driver, check every car so no discrimination, addresses drunk driving issue, support for this alternative to addressing the issue.
Is it ok to do roadblock checks to detect drugs?
No - cant have checkpoints for purpose of “general interest in crime control” - ok if looking for something specific like a crime that happened a week earlier, just to gather info
Do school officials need warrant to search a student?
No - search is justified where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating the law or rules of the school. Search is permissible in its scope when the search measures are reasonably objective and not excessively intrusive - purpose must be to uncover violations
Ok to do strip search?
There must be reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing. There must also be threat if danger to others.
Ok to search parolee without suspicion?
Yes - they have limited LREP and are more likely to commit a future criminal offense
Ok to search a probationer with only slight suspicion?
Yes - only slight suspicion needed
Ok to search released prisoner without suspicion?
Yes
Mandatory drug testing of employees ok?
Yes
Mandatory drug testing of students?
Only if they participate in an extracurricular activity.
Standing
Defendants can contest a 4th amendment violation if they can demonstrate a privacy interest was violated by a gvt official and that the person was a victim of unreasonable search/seizure. Officers need the right to search the person or area.
Seizure
Application of physical force or submission to the assertion of authority
Fruit of the poisonous tree
All evidence obtained from the exploitation of illegally obtained evidence is inadmissible at trial. Exceptions: evidence obtained from an independent source, an intervening act of free will by the defendant, inevitable discovery.
Can police randomly stop a single automobile for license and registration checks?
No
Stop and frisk
If police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may detain a person for investigative purposes (Terry). If police have reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons. Detention can be no longer then necessary to conduct a limited investigation to verify the suspicion. If probable cause arises during the detention it becomes an arrest. Stop equals detainment, but hit arrest.
Arrest
An arrest occurs when the police take a person into custody against his will for purposes of criminal prosecution. There must be probable cause to arrest. Arrest warrant not required for arresting a suspect in a public place. Arrest warrant is required for a non-emergency arrest of a person in his home.
Standing
To contest a search, the person being searched must establish standing, which is established through the person showing that he had a legitimate expectation of privacy and that there was no governmental conduct involved.
Legitimate expectation of privacy
Right to possession of place searched, placed search was his home whether or not he owned it or had right to possession of it, he was an overnight guest of the owner of the place searched.
Exceptions to warrant requirement
Search incident to an arrest, automobile exception, plain view, consent, stop and frisk, hot pursuit, administrative searches.
Shocks the conscience test
Due process requires evidence to be obtained in a manner that does not offend one’s sense of justice. Body searches invoke privacy rights and their reasonableness requires a balancing between the public’s need for the evidence against the gravity of the invasions.
Search incident to an arrest
Incident to a lawful arrest, police may search the person or an area within their arm-span to obtain weapons. If person being searched is in an automobile, search incident to arrest may include the entire passenger compartment of car (including gloved compartment but not trunk or any containers). Search must be contemporaneous in time and pace with an arrest. No probable cause needed for search, only to seize.
Automobile exception
If police have probable cause to believe that a vehicle contains evidence of a crime, they may search the entire vehicle or any container that might reasonably contain the item for which they had probable cause to search.
Plain view
Police may make a warrantless seizure of evidence in plain view when they are legitimately on the premises, discover contraband, evidence, fruits, or instrumentalities of crime, see such evidence in plain view, have probable cause to believe that such item is an instrumentality of a crime or evidence of such.
Consent
Ok to search person or premises if they give consent, consent must be voluntary and intelligent, scope of search limited by scope of the consent
Hot pursuit
Can make warrantless search and seizure of a fleeing felon, no warrant needed, evidence may disappear before warrant can be obtained, police can pursue suspect into a private dwelling but must reasonably consider whether or not those inside will be harmed
Administrative search
Agencies may obtain warrants for searches of private residences and commercial buildings, lower standard, showing of general and neutral enforcement plan will justify issuance of warrant
Critical stage
State doesn’t have to provide an atty throughout the criminal process, only at a critical stage of the proceedings.
