Searches and rules

Question 1

True or false - abandoned property requires a search warrant

Answer 1

false

Question 2

True or false - items dropped during a pursuit require a search warrant

Answer 2

false

Question 3

If a person leaves an apartment or hotel room with no intention of leaving, that is abandonment and no search warrant is required.

Answer 3

true

Question 4

If a person forgets a jacket at a restaurant, is that abandonment

Answer 4

No, there is no evidence he intended to abandon the property, only that he forgot it.

Question 5

If a subject tosses a balled up t shirt in front of a store and then goes inside, is that abandoned?

Answer 5

No, there is no evidence that he intended to abandon the property.

Question 6

Define “curtilage”

Answer 6

the area which extends to the intimate activity associated with the sanctity of a man’s home and the privacies of life.

Question 7

Can the areas OUTSIDE the curtilage of a home be searched without a warrant?

Answer 7

Yes

Question 8

Are open fields and thickly wooded areas considered curtilage? (Open fields doctrine)

Answer 8

No

Question 9

State v Patricia Smith (NH) You should know this info, just read the answer so you’re familiar.

Answer 9

State of New Hampshire v. Patricia Smith
No. 2010-728
January 13, 2012
Affirmed

Whether evidence obtained from a search of defendant’s property should be suppressed because the warrant was obtained on information gathered by detectives from outside defendant’s dwelling, but within the boundaries of defendant’s property.

Acting on a tip that defendant was growing marijuana insider her house, a sheriff’s detective began an investigation, obtaining, among other things, electric bills showing high usage year round. He also drove past the premises and observed two air vents, one like a dryer vent and the other a powered exhaust vent. He enlisted the assistance of a state police detective to investigate the matter further.

On several occasions, the two detectives entered the woods behind defendant’s house to conduct surveillance, making a correlation over time between the operation of the power exhaust vent and a suddenly strong smell of marijuana. The wooded area from which the detectives observed the property was within the boundaries of defendant’s property, but was un-maintained and beyond a stone wall designating the edge of the maintained yard area.

In considering whether a defendant’s expectation of privacy is reasonably extended to areas surrounding the home, the Court identified a number of factors: proximity to the home; presence of enclosures around the area; nature of use and steps taken to protect the area from observation of passersby. No single factor is dispositive; the critical question is whether a particular area claimed to be within the cartilage is “necessary and convenient and habitually used for family purposes and carrying on domestic employment.” State v. Johnson, 159 N.H. 109, 112 (2009).

Applying the factors to defendant’s appeal, the Court found that while the area was within close proximity to defendant’s house, the area was unused and was not protected by fencing, hedges or other enclosures, nor did defendant take any efforts to prevent outsiders from accesses the area. The Court held that, because the defendant had no reasonable expectation of privacy, the trial court properly allowed the evidence obtained from the search.

Question 10

Would a no trespassing sign invalidate a search of an open field?

Answer 10

No

Question 11

Is the use of flashlights an binolculars permitted in an open field search?

Answer 11

Yes

Question 12

Do aerial fly-overs violate the constitution?

Answer 12

No

Question 13

Can an officer monitor for criminal activity from a public street or other vantage point where he has a right to be?

Answer 13

Yes

Question 14

Is a driveway or walkway, apartment building hallway or corridor considered a SEMI_PRIVATE area

Answer 14

Yes

Question 15

What is the rule of thumb for entry of driveways?

Answer 15

Police on legitimate business can enter a driveway and go where a mailperson or newspaper delivery person could go.

Question 16

If there legally, may an officer look through a window and/or listen at a door?

Answer 16

yes

Question 17

If there legally, may an officer peer through small openings which the person has shown an obvious intent to shield from view?

Answer 17

no

Question 18

If there legally, should an officer obtain a warrant to seize items, unless there are exigent circumstances?

Answer 18

yes

Question 19

Why is it okay to move papers which are on top of a VIN plate on dashboard during car stop? (New York v Class, 1986)

Answer 19

Because of the important role played by the VIN in the pervasive governmental regulation of automobiles and the efforts by the Federal Government through regulations to assure that the VIN is placed in plain view, respondent has no reasonable expectation of privacy in the VIN. The placement of papers obscuring a VIN is insufficient to create a privacy interest in the VIN.

Question 20

Use of technology - Kyllo v United States, 2001 -

When does the use of technology require a search warrant?

Answer 20

When the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant…

Question 21

Does GPS monitoring without a warrant violate the 4th amendment?

Answer 21

Yes - The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977) . We hold that the Government’s installation of a GPS device on a target’s vehicle, [ 2 ] and its use of that device to monitor the vehicle’s movements, constitutes a “search.”

Question 22

If you run a plate number on a passing vehicle, with no grounds for suspicion, and discover that the owner’s license is suspended, is it reasonable to stop the vehicle based on the assumption that the owner may be driving the vehicle illegally?

Answer 22

Yes

Question 23

IS “SEIZURE” OF A PERSON ALWAYS A PHYSICAL ARREST?

Answer 23

No. If there freedom of movement is restricted in a significant way, no matter for how long, it can be considered a seizure.

Question 24

If a person is questioned, but is free to go, is that a seizure?

Answer 24

No

Question 25

What will the Court look at, to determine whether a person was “in custody?”

Answer 25

Number of officers present, degree to which subject was restrained, the character of the encounter (whether the subject was merely questioned, or was interrogated),the length of the encounter, and the suspect’s familiarity with their surroundings.

Question 26

Can you force a subject who is not under arrest to answer your questions?

Answer 26

No

Question 27

Can you arrest a suspect based solely on their refusal to listen or answer questions?

Answer 27

No

Question 28

True or false - in New Hampshire, detention of a driver lasts only as long as it takes to address the reason for the stop?

Answer 28

True. Further detention must be supported by additional articulable suspicion if an additional offense.

Question 29

Different treatment of any person in stopping, arresting, detaining or searching, based on race, religion, ethnic origin, sex, or sexual orientation are examples of what?

Answer 29

Illegal profiling

Question 30

What should stops be based on?

Answer 30

Suspect behavior or matching description

Question 31

Should you use the “but/if” test?

Answer 31

Yes. This test asks “but for their (race/religion/ethnic origin/sex or sexual orientation) would I have stopped them?