Searches and Seizures Flashcards
When has a person been seized?
When, due to government action, a reasonable person in the defendant’s position would not feel free to leave or terminate a police encounter
What are requirements for a person being seized?
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
What is a Terry Stop
A brief investagory seizure
What is the difference between a Terry Stop and an arrest
Duration and purpose
What is the duration of a Terry stop?
The permissible duration is the time necessary to confirm a reasonable suspicion that a crime has occurred
When may a Terry stop be escalated to an arrest
If police confirm a reasonable suspicion that a crime occurred, police have probable cause to continue a search
What is requirement if police cannot confirm probable suspicion that a crime has occurred during a Terry stop?
The seizure must stop
What is a search?
Any governmental investigatory trespass against a Fourth A interest or intrusion into a reasonable expectation of privacy
What is an investigatory trespass?
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
Is an investagory motive required for investigatory trespass?
Yes
What is required for there to be a reasonable expectation of privacy?
- The D manifests a subjective expectation of privacy by making an effort to shield the thing or activity from the public
- The expectation is objectively reasonable because it is an expectation society is willing to recognize
When will there be no reasonable expectation of privacy?
If the objects are held out to the public, including handwriting, voice, bank records, email headings, open fields or discarded property
What is required by the 4th A regarding searches and seizures?
The 4th A requires that the search or seizure be reasonable
What impact does having a warrant have regarding the validity of a search or seizure?
A warrant creates the presumption of reasonableness that must be rebutted by the D
How may a D rebut the presumption of reasonableness created by a warrant?
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
What is the effect of a search that isn’t pursuant to a warrant?
Any search or seizure without a warrant is presumptively unreasonable
Who bears the burden of proving a warrantless search is reasonable?
The government bears the burden of proving that a warrantless search falls within an established exception
What is probable cause for purposes of arrest?
Facts and circumstances that would make a reasonable person conclude that the individual in question has committed a crime
What is probable cause for purposes of search or seizure?
The specific items related to criminal activity can be found at a particular location
When is probable cause always required for a search to be reasonable?
Probable cause is always required for a full-scale intrusion or search to find evidence
When can probable cause be based on a tip from a confidential or anonymous informant?
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
What is the totality of the circumstances test used for the reliability of anonymous tips?
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
What is reasonable suspicion?
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
What activities by the police may be justified by reasonable suspicion?
Reasonable suspicion is a level of certainty that will justify only a brief investigatory seizure (Terry stop) or cursory protective search (Terry frisk)
