Searches Flashcards
What is a search?
The governments intrusion into an area were society believes in expectation of privacy exists
What is the scope of a search?
Location to be searched, and what items are being sought 
What is the elephant in a matchbox doctrine? 
It requires officers to consider the probable size in shape of the evidence they seek
-such as if you’re looking for an elephant you don’t have the right to look in a matchbox because the elephant won’t fit
What are the recognized exceptions to the warrant requirement? There are 7
Consent,
Plainview,
automobile
Incident to arrest,
exigency
inventory
Terry stop 
What is a consent search
-A waiver of the persons fourth amendment right
-Not a search
What is the legal standard for consent search
A police officer need not have reasonable suspicion, or probable cause when they’re encounter with a citizen is consensual.
What is required to prove consent?
What type of consent is accepted?
Also there is an example given, what is it?
Burden is on the government to prove, by preponderance of the evidence:
-Either expressed or implied consent
-It was freely and intelligently given 
Example, if someone is in handcuffs, and you want to search their house, remind them that they could deny consent, and then ask them if you could search their place.
What are the two types of consent? 
-Express consent
-Implied consent
What is express consent?
Clear and direct statement of agreement
What is implied consent?
Shown by actions rather than words 
For consent to be valid what must be present
- Expressed and Implied
-Must prove consent was unequivocal and specific
-Freely and intelligently given, not coerced 
What things must you consider when evaluating if consent is valid. 5 points
Has to do with officers
-Number of officers on scene
- Location of where officers are standing (surrounding suspect)
-weapons displayed
-tone of voice
- language used
-person is detained or arrested in handcuffs 
What is apparent authority?
When an officer has a reasonable belief that the person consenting has authority to do so when the person, in fact, does not have authority to do so.
 What are the limitations of consent?
A physically present co-occupant may object to the search.
When this happens, the search is unreasonable and you must stop
When asking about weapons on someone, how should you not ask? And how should you ask?
Do you have any rocket launchers, hand, grenades, or nuclear weapons on you?
Remember, the elephant in the matchbox, you have just limited your search while asking these questions
Be specific of what you’re looking for, or just say weapons 
What is Plainview?
- The seizure of evidence, or contraband
- that are in view of an officer,
- where the officer has legal right to be - in an area protected by the 4th amendment.
What is the legal standard for Plainview?
Probable cause
What are the limits of Plainview?
- Must lawfully be in the area protected by the fourth amendment
- Must immediately know the item is evidence or contraband
- Cannot move or manipulate the item to determine if it’s evidence or contraband
What is the case law for Plainview?
Place caselaw here
What is the automobile exception?
- Due to the mobility of the vehicle, if an officer has probable cause to believe the vehicle contains contraband, the officer may search without a warrant.
- if a vehicle is readily mobile, the exception applies
- You must have lawful access to the vehicle for the exception to apply
What is the legal standard for automobile exception?
Probable cause
What are the limitations of the automobile exception? PCCO - 4 points
- On private property
— within the garage
— within the curtilage - Capable of movement
— does not mean that the car is presently occupied, merely means the vehicle can be driven off by the turn of the key - Containers in the vehicle
— if they are capable of containing the items sought - Occupants
— not subject to search, simply for being in the car
What is the case law for automobile exception?
- Carol versus United States
— can search a car if there’s probable cause to believe it contains contraband - US versus Di Re
— occupants are not automatically subject to search
—- must have independent suspicion of criminal activity
What is the legal standard for Search incident to an arrest?
- Probable cause for the arrest
— person has been arrested
—- must be able to make the arrest to get to the search
What is the purpose to search incident to arrest?
- Purpose
— to prevent the destruction of evidence
— to prevent access to weapon 
What is the scope to a search to an incident to arrest?
- scope
— what can be searched
—- person
—- containers on the person
—- wingspan
—— the immediate area around a person where they might obtain a weapon
—— protective sweep
——- reasonable belief and articulable facts at the area to be swept, may be hiding a dangerous individual
What are the limitations to search incident to arrest?
- limitations
— digital data
—- cell phones
—— can turn it off or put it in a faraday bag
— bags, 10th circuit
—- if a bag or backpack can be removed, it cannot be searched incident to arrest
—- invasive, bodily searches
—— blood on a DUI
You must hand it off to another person if subject wants it handed off. If not handed off you can’t search but…
You must by policy conduct and inventory of said item
What is the case law on searches incident to arrest?
US versus Robinson ;
Riley versus California;
Burchfield versus North Dakota; Chimel versus California ;
US versus Chadwick;
Arizona versus Gant
- US versus Robinson
— search of a person incident to arrest is not limited to the outer clothing
— you can search containers found on a person - Riley versus California
— cannot search his cell phone incident to arrest - Burchfield versus North Dakota
— cannot draw blood for DUI as a search incident to arrest - Chimal versus California
— can search the person and wingspan for weapons in evidence - Cannot search surrounding rooms without justification
- US versus Chadwick
— reasonable, expectation in luggage in baggage, once seized and immobilized, you need a warrant
—- exception
—— inventory of personal effects - Arizona versus Gant
— can only search a vehicle incident to arrest if there is a reasonable belief that vehicle contains evidence of the offense of the arrest
— can search vehicle, if the suspect is within reaching distance of the passenger compartment at the time of the search
What is an exigent circumstance?
- a situation that would cause a reasonable person to believe the entry was necessary:
— prevent physical harm to the officer or others
— prevent the destruction of evidence
— prevent the escape of the suspect
What is the legal standard for exigency?
- Exigency is determined on a case-by-case basis
— is there an objectively reasonable believe the entry is necessary
— probable cause for the search
What is an example of an exigent circumstance?
Landlord is at the apartment and asked officers to check on the tenant because he thinks they may be dead 
What is the case law on exigency?
- Missouri versus McNeely
— the metabolization of alcohol, does not present in exigency, and therefore an exigency to the warrant requirement - Brigham city, Utah versus Stewart
— is there an objectively reasonable believe the entry is necessary
What is an inventory search?
- The accounting of contents when a vehicle is impounded for any reason 
What is the legal standard for an inventory search?
- This is an administrative procedure required by policy
What are the limitations of an inventory search?
- Policy does not give discretion, but requires the inventory when impounded
- Areas to be search or spelled out in the policy
What is the community caretaking function?
When an officer has a reason to suspect a vehicle contains a dangerous item, which, if left unattended, will in danger the public safety. The officer may then search the vehicle to remove the hazard
What is a terry stop?
Terry v. Ohio, 392 US 1(1968)-An officer can briefly detain a person, based upon reasonable suspicion of criminal activity, long enough to dispel the suspicion or to allow it to rise to the level of probable cause for an arrest. The officer is also permitted to do a limited “frisk” search of the person without a warrant. Before the officer can frisk search the subject, he must:
- Have articulable facts that the person could be armed with a weapon.
- Limit the search to pat searching the outer garments of the suspect to feel for objects that might be weapons.
- Only reach inside the clothing after feeling such objects
What is the legal standard for Terry stop
Reasonable suspicion
If you stop a car, and upon approaching the car, you smell marijuana, can you search all the occupants in the vehicle?
No, you cannot, you cannot search everyone within the vehicle, but you have to have clear, articulable evidence showing that the person to be searched, has the drugs on them
If a dog alerts on a car, can you search everyone within the vehicle
No, you cannot
If you smell drugs within the car or dog alerts in the car, what are you allowed to do?
Search the vehicle, but not the occupants
If drugs are found in the car, and everyone denies ownership, what can you do?
Arrest or sight all the occupants within the vehicle
Is a search warrant required to search in automobile, if it is parked, and not readily accessible by the suspect?
A search warrant is required to search an automobile if it is parked, and is not readily accessible by the suspect.
In this case, the suspect of a murder was in his residence and the vehicle was parked in the driveway.
The court stated in part the following: “no alerting criminal been on flight no fleeting opportunity on an open highway after hazardous chase no contraband or stolen goods or weapons no Confederates, waiting to move the evidence that even the inconvenience of a special police detail to guard the immobilized automobile in short by no possible stretch of the legal imagination can this be made into a case where it is not practical to secure a warrant”
If you can’t search the occupants of a vehicle after a dog alerts on the vehicle for narcotics, then what do you need to search the occupants? 
You will need something that they call in Nexus, which is a reason to search the occupants.
Nexus :
1. Dog alerting to drugs within the vehicle, while occupants are within the vehicle. ( greyhound bus alert- NO)
2. Another nexus was after the vehicle was being searched Anchando told the police that they won’t find drugs within the vehicle.
3. Anchando was the driver, driver assumed to have custody and assumed you know what’s in vehicle.
4. look for abnormal nervousness evasiveness, begging to be let go. 
5. Deception the occupant is lying to you.
6. Reactions, not consistent with innocence ( ex . There shouldn’t be, but my friend was in the car earlier ; not a reaction associated with innocent )
7. Also specifics about them or the known environment. For example, they come from a known drug house. - There criminal history indicates involvement with narcotics.
- they appear to be an active drug user
Illinois v. Anchando. What are the specifics?
- Dog alerted on the vehicle while occupants within the vehicle.
- Anchando while outside the vehicle told the police that they wouldn’t find drugs within the vehicle, giving the officer, the impression that the drugs were on him.
- Anchando is the driver of the vehicle giving the impression that he knows exactly what’s in the vehicle.
- Taking all the elements together, it was concluded that the more likely the drugs were on the driver, and therefore he was searched. 
