Searches and Seizures

Question 1

When has a person been seized?

Answer 1

When, due to government action, a reasonable person in the defendant’s position would not feel free to leave or terminate a police encounter

Question 2

What are requirements for a person being seized?

Answer 2

For a person to have been seized, either
1. police must use physical force
2. there must be a showing of authority followed by submission

Question 3

What is a Terry Stop

Answer 3

A brief investagory seizure

Question 4

What is the difference between a Terry Stop and an arrest

Answer 4

Duration and purpose

Question 5

What is the duration of a Terry stop?

Answer 5

The permissible duration is the time necessary to confirm a reasonable suspicion that a crime has occurred

Question 6

When may a Terry stop be escalated to an arrest

Answer 6

If police confirm a reasonable suspicion that a crime occurred, police have probable cause to continue a search

Question 7

What is requirement if police cannot confirm probable suspicion that a crime has occurred during a Terry stop?

Answer 7

The seizure must stop

Question 8

What is a search?

Answer 8

Any governmental investigatory trespass against a Fourth A interest or intrusion into a reasonable expectation of privacy

Question 9

What is an investigatory trespass?

Answer 9

Intrusion upon a target’s person, home, papers or effects for the purpose of finding or gathering evidence of a crime, conducted with an investagory motive

Question 10

Is an investagory motive required for investigatory trespass?

Answer 10

Yes

Question 11

What is required for there to be a reasonable expectation of privacy?

Answer 11

1. The D manifests a subjective expectation of privacy by making an effort to shield the thing or activity from the public
2. The expectation is objectively reasonable because it is an expectation society is willing to recognize

Question 12

When will there be no reasonable expectation of privacy?

Answer 12

If the objects are held out to the public, including handwriting, voice, bank records, email headings, open fields or discarded property

Question 13

What is required by the 4th A regarding searches and seizures?

Answer 13

The 4th A requires that the search or seizure be reasonable

Question 14

What impact does having a warrant have regarding the validity of a search or seizure?

Answer 14

A warrant creates the presumption of reasonableness that must be rebutted by the D

Question 15

How may a D rebut the presumption of reasonableness created by a warrant?

Answer 15

D bears the burden of rebutting the presumption of reasonableness of a search if there is a warrant by proving:
1. the warrant was not based on valid probable cause
2. the magistrate wasn’t neutral or detached
3. the warrant failed to describe with particularity the thing to be seized or the place to be searched
4. the affidavit supporting the warrant was so lacking in probable cause that no rookie officer would have trusted it

Question 16

What is the effect of a search that isn’t pursuant to a warrant?

Answer 16

Any search or seizure without a warrant is presumptively unreasonable

Question 17

Who bears the burden of proving a warrantless search is reasonable?

Answer 17

The government bears the burden of proving that a warrantless search falls within an established exception

Question 18

What is probable cause for purposes of arrest?

Answer 18

Facts and circumstances that would make a reasonable person conclude that the individual in question has committed a crime

Question 19

What is probable cause for purposes of search or seizure?

Answer 19

The specific items related to criminal activity can be found at a particular location

Question 20

When is probable cause always required for a search to be reasonable?

Answer 20

Probable cause is always required for a full-scale intrusion or search to find evidence

Question 21

When can probable cause be based on a tip from a confidential or anonymous informant?

Answer 21

Probable cause can be based on a tip from a confidential or anonymous informant based on whether, given the totality of the circumstances, the tip is reliable

Question 22

What is the totality of the circumstances test used for the reliability of anonymous tips?

Answer 22

The totality of the circumstances test used for the reliability of tips considers:
1. the veracity of the informant (normally predictive information)
2. the basis of the informant’s knowledge (based on how the informant knows about the activities of the suspect, and to what extent of familiarity)
3. a police investigation that corroborates the facts in the tip and validates the accuracy of the informant’s predictions

Question 23

What is reasonable suspicion?

Answer 23

A belief based upon articulable information that is more than a mere hunch, used by a reasonable person or cop that the suspect has or is about to engage in an illegal or criminal activity

Question 24

What activities by the police may be justified by reasonable suspicion?

Answer 24

Reasonable suspicion is a level of certainty that will justify only a brief investigatory seizure (Terry stop) or cursory protective search (Terry frisk)