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Criminal Procedure > Searches and Seizures > Flashcards

Searches and Seizures Flashcards

1
Q

exclusionary Rule

Is it constitutionally mandated?

A

excludes any evidence found and not admit at trial.

seized evidence and usage of that evidence are both independently a violations of fourth amendment

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2
Q

The Fourth Amendment Right

what are the two elements?

A

•The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures

  1. Government Action
  2. search or seizure
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3
Q

Silver platter doctrine

Reverse silver platter doctrine

A

: Feds could use evidence illegally seized by state agents

Feds could give illegally seized evidence, inadmissible in Federal court, to states for use in state court

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4
Q

who does government action apply to?

A

only government actors, does not restrict private citizens unless acting on behalf of law enforcement

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5
Q

what is a search?

A

Police or gov’t action that invades a reasonable expectation of privacy

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6
Q

What is the two part test to determine reasonable expectation of privacy?

A

o 1. Did Defendant manifest a subjectively held expectation privacy?
o 2. Is it an expectation of privacy that society views as reasonable or justifiable?

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7
Q

Open Field v Curtilage

A

Is the difference between how much of yard gets 4th amendment protection

Test:

  1. How close to home?
  2. Within an enclosure surrounding the home?
  3. Nature of use?
  4. Steps taken to protect area from observation by passers-by?
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8
Q

Privacy in Public Areas Rationale

A

you have essentially allowed the police to see what you left available for the public to see

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9
Q

Reasonable officer subject or objective test under 4th amen.?

A

4th amendment when it comes to the police is objective not subjective so officer intent does not matter must be reasonable

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10
Q

4th amendment property interest elements

A
  1. Property invasion
  2. Information seeking

Property Interest: Focusing on whether there is license for a particular area and purpose when getting on someone’s front porch

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11
Q

Are bugged agents a 4th amendment violation?

A

Court found that a bugged agent produces more accurate information than the agent testifying on the stand, which is not a violation. No constitutional right is violated because the person willingly gave this information to a 3rd party(and trusted them to do with information as they please; which could include going to the police)

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12
Q

Reasonable expectation of privacy in trash?

A

No reasonable expectation of privacy for trash left on the curb for anyone or even an animal to rummage through and you have shared it with a 3rd party(garbage collector) who is free to share with someone else.

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13
Q

Is thermal imaging a home a property invasion?

A

Everything that is in the home is by definition intimate

Thus technology that reveals the content of home, where you typically would only know that by physical invasion it constitutes a search

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14
Q

Is GPS tracking a search?

A

Property invasion plus information seeking, the car is considered an effect

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15
Q

What is the seizure of a person test?

A

whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.

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16
Q

Do officers have to tell those they encounter that they have right to refuse consent?

A

Don’t have to tell someone that you have a right to refuse consent

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17
Q

mere encounter v seizure

A

Show of force or submission to authority is what makes something a seizure

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18
Q

What is the starting point for searches or seizures

A

Probable Cause & a Warrant

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19
Q

warrant requirements

A

must be based on probable cause and must particularly describe the place to be searched

  • The police can only go into the particular premises that they have secured probable cause to enter
  • Protects privacy interests
  • Protects property interests
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20
Q

Can justice of peace issue a warrant?

A

Justice of the Peace cannot issue an evidentiary warrant, only a warrant for specific items.

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21
Q

Knock & Announce warrant required unless..

A

futile or dangerous

o Supported by reasonable suspicion(lesser standard)

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22
Q

is there a remedy for failure to knock with warrant?

A

No, there’s is not a remedy as the reason the contraband was found was because of the legal warrant not the failure to knock and announce. (no causal link)

23
Q

How long must officers wait after knocking to serve warrant

A

Facts known to police officer at the time are what counts in determining a reasonable wait time.

For narcotics 15 seconds may be reasonable for the ease in which narcotics can be destroyed.

24
Q

what is required of police when inside and executing a warrant?

A

that police actions in execution of a warrant be related to the objectives of the authorized intrusion

25
Q

What is probable cause?

A

That quantum of information which warrants a reasonable person in believing that a crime has occurred or is occurring

26
Q

Probable Cause for search requires

A

quantum of info/ PC that items of a criminal nature are to be found in the place searched

27
Q

What is needed for probable cause of arrest?

A

PC that person arrested committed the crime

28
Q

What is required when using informants

A

Must show informant is credible and their source of information

29
Q

PC + Exigent circumstance

What dangers if we wait for warrant?

A

o Fleeing suspect
o Destruction of evidence
o Community caretaking?

30
Q

Plain view warrant exception

A

o The police must 1st have legitimate justification for being where they are
o AND it must be immediately apparent they you are looking at contraband or evidence of a crime

31
Q

Plain View: what does immediately apparent mean?

A

Must be apparent without further manipulation.

Immediately apparent means probable cause.

32
Q

Automobile Warrant Exception

A

o Must have probable cause to believe contraband or evidence of crime in automobile
o May search without warrant
o Extends beyond search incident to arrest [Includes trunk area]

33
Q

Does container not in automobiles need a warrant?

A

warrant is required because of heightened expectations of privacy in your luggage and containers

34
Q

Can police search containers in automobiles?

A

if you generally have probable cause to search an automobile you generally can search the whole car including containers if the contraband could be found in that container

Must have probable cause of the car itself!

35
Q

Arrest in home v Public Place

A

If you arrest in a public place you do not need to have a warrant as long as you have PC. If you arrest in a home you almost always do need a warrant

36
Q

Warrantless arrests permitted in public

A
  • Can arrest if felony

* Can arrest if misdemeanor committed in officer’s presence

37
Q

Gerstein Review

A

An ex parte process where Judge decides whether probable cause for arrest that occurred

38
Q

Timing for Gerstein Review:

A

o “Without unnecessary delay”- reasonable
o Ordinarily, within 48 hours of arrest

However, if there was magistrate present & available and you waited 48 hours it may rebut the presumption on 48 hours is reasonable

39
Q

Arrest in home v 3rd party home

A

Arrests in suspect’s home
• Arrest warrant required, but no search warrant
• Police have to have PC to believe the person is home
Arrests in 3rd party’s home
• Search warrant and arrest warrant required

Search warrant is needed to go into the home of someone you are not arresting. So, a magistrate can determine that there is PC the person will be found there

40
Q

what is needed before someone can consent to a search?

A

• do not need probable cause or a warrant
• No suspicion required
• Not same as “waiver”
o The requirement for a “knowing and intelligent waiver” of constitutional rights applies once a criminal trial has begun; it does not apply to routine police questioning governed by the Fourth Amendment.

41
Q

what is the test to see if consent was given voluntarily?

A

The totality of circumstances surrounding the consent must be analyzed to determine if consent to search was voluntarily given without police coercion.

• subjective test: what that person actually feels not reasonable person - looks at the attributes of that person

42
Q

Can 3rd party consent to a search?

A

Having common authority with another, mutual use and access for most purposes
• The voluntary consent of any joint occupant of a residence to search jointly occupied premises is valid against the co-occupant

a subjective tests about usual course of action between co-occupants

43
Q

Terry stop & frisk requires

A

reasonable suspicion (not probable cause)

  1. specific articulable facts(things that can be reduced to writing and explained in court) taken to together with
  2. rationale inferences (patterns of criminal conduct that officers recognize) that would warrant a reasonable officer(police officer may notice patterns the average person does not know) in believing that crime is a foot
  3. AND before the search can happen you need reasonable suspicion that the person is armed and dangerous
44
Q

Terry stop is limited in?

A

Limited in duration and limited in scope. A temporary detention and a limited search

45
Q

How long can terry stop be?

A

the test is whether police diligently pursued a means of investigation likely to confirm or dispel suspicion quickly

o 90 minute seizure in Place not OK
o 20 minute stop in this case OK

46
Q

what are criminal profiles

A

sets of characteristics that may (or may not) be correlated to particular kinds of criminal activity/with criminality

the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance.”

47
Q

Due Process Claims regarding unspecific gang ordinances?

A
  • Overbreadth- statute is written in such broad terms that it captures innocent activity
  • Vagueness- does not give sufficient notice to tell them what conduct is or is not criminal, also making it open to discriminatory arbitrary and capricious enforcement by law enforcement
  • Uncertainty as to what is criminal
  • No notice
  • Open to arbitrary & capricious enforcement
48
Q

what is needed for a warrantless inspection of a closely regulated business?

A

closely regulated, warrantless inspections must:
• (1) serve a substantial governmental interest,
• (2) be necessary to further the interest, and
• (3) be of adequate certainty and regularity

49
Q

Why are “special needs” inventory searches allowed?

A

primary purpose is not general law enforcement- designed to protect property, to protect police against theft claims, and a safety check for weapons not be in the jail.
 Protect property
 Protect against false claims
 Protect against danger

50
Q

Exclusionary rule extends to derivative evidence unless

A
  1. attenuation
  2. independent source
  3. inevitable discovery
51
Q

attenuation factors for poisonous fruit?

A
  • Time between illegality & fruit
  • intervening circumstances
  • flagrancy misconduct
52
Q

What is the per se rule of warnings to protect 5th amendment right?

A

Before a statement that is responsive to interrogation, made in custody, and is testimonial can be admitted into evidence, the state must prove that Miranda warnings were given.

53
Q

Custody

A

Whether a reasonable person would feel that he’d been deprived of his freedom in a significant manner

54
Q

Miranda

A

Before a statement that is responsive to interrogation, made in custody, and is testimonial can be admitted into evidence, the state must prove that Miranda warnings were given

Criminal Procedure (1 decks)

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