Searches 1 and 2 Flashcards
General Warrant Requirement
absent special circumstances, search warrants are required for all criminal investigative searches
- warrants the best assurance that a court will rule a search reasonable
- You must have a warrant to search a cell phone
Duties of officer/magistrate
- officer collects relevant, legal evidentiary info
- magistrate draws inferences and conclusions from that info
- Sources of info are the same as discussed in other chapters
- Remember the 3 elements of probable cause… offense committed, items sought are connected with criminal activity, and such items will be found in the place to be searched
What two words describe a magistrate who approves/disproves warrants?
NEUTRAL AND DETACHED
Who can issue a warrant in SC?
Remember the three criminal courts…
- Magistrates
- Municipal judge
- Circuit judge (general sessions)
What additional protection do SC residents have under the SC constitution?
protection against unreasonable invasions of privacy
What standards must a valid 4th Amendment search warrant meet?
DESCRIBING the PLACE to be searched and the PERSONS or THINGS to be seized.
Does a search incident to arrest require a warrant?
No, this is a warrantless search exception to the 4th Amendment
Where can things be seized?
- Any place the property is located
- From the suspect/any person possessing or controlling the property
What is the only kind of judge who does not get a warrant returned to him?
Circuit judges… the warrants they issue will be returned to a local magistrate
Search warrants must be returned within 10 days.
Inventory, receipt, and return during/after an investigative search
Inventory any items seized, leave a receipt of the seized items with occupants of the residence, then also attach a copy of the receipt to the warrant when you return it to the issuing judge.
Miscellaneous administrative matters when searching
- secure premises after search
- document any damage done during search
- use 2 people/special attention when handling money/valuables
- be mindful of potential plain view seizures
knock and announce requirements
- Identify yourself and state your purpose.
- Wait a reasonable time
- Make forcible entry if necessary
What are the requirements for executing a no-knock warrant?
- State in your warrant that you plan to do one
- Articulate that knocking and announcing would be DANGEROUS, FUTILE, OR THAT EVIDENCE MIGHT BE DESTROYED
- Be reasonable… try not to excessively damage property
Does deception used to secure a peaceable admission for the purpose of executing a search warrant undermine the purpose of the knock and announce requirement?
No
Control of premises and persons during search
Officers executing a search warrant are in absolute control of the premises and should take necessary steps to prevent interference or resistance.
- you may control the movement of anyone in the house, but you cannot terry frisk them unless you have reasonable suspicion
- You may detain anyone in the immediate vicinity
Can you detain someone outside their house and prevent them from entering the house if you do not have a warrant?
Yes… but only for a reasonable amount of time while you wait for a warrant to arrive?
Can you perform a detailed search all of the people in a home when executing a search warrant?
No… you can’t do anything more than a Terry frisk unless the other persons are listed by name in the search warrant
Scope, Duration, and Intensity of search
Scope: only search where evidence being sought could reasonably be found
Duration: after finding what you are searching for, you cannot stay/continue searching for an unreasonable amount of time
Intensity: Don’t cause unnecessary damage
Prior to 1967, how were 4th Amendment cases evaluated?
With a property-based approach involving common law trespass
Since Katz vs. US, what has the Supreme Court said about the 4th Amendment?
It protects people, not places or things
What does the privacy based approach to the 4th Amendment mean?
the 4th Amendment applies anytime/anywhere someone believes they have a “reasonable expectation” of privacy
Since US vs. Jones (2012), what is the current Supreme Court holding on the 4th Amendment?
the 4th Amendment protects both property rights and personal rights… THIS IS A PROPERTY AND PRIVACY BASED APPROACH
In a privacy based analysis, what must the defendant prove?
that their connection to a place/thing is more than just their immediate presence there… they must prove an actual connection
Test of Reasonableness
Under the privacy-based approach to the 4th Amendment, a search for or seizure of evidence must be REASONABLE.
The test of reasonableness is met by the production of facts and circumstances amounting to probable cause to believe the evidence is located at the place or on the person to be searched.
In some cases, the court may use a balancing test to determine reasonableness.
