Searches and Seizures Flashcards
Seizure
Seizure
Definition: Under the totality of circumstances a reasonable person would NOT feel:
(1) Free to decline the officer’s request
(2) Terminate the encounter
Arrest
Definition: Occurs when the police take a person into custody against their will
Requirements: (1) Arrest must be based on PROBABLE CAUSE & (2) A WARRANT (in certain circumstances)
Investigatory Detentions
If the police have a:
(1) REASONABLE SUSPICION of criminal activity
(2) which is supported by ARTICULABLE FACTS
They may detain a person for investigative purposes and frisk if the detainee is considered armed & dangerous
Investigatory Detentions:
Duration and Scope
No specific time limit, but police must act in a diligent and reasonable manner in confirming or dispelling suspicions
Automobile Stops:
General Rule
Police Officers MAY NOT stop a car unless they have a REASONABLE SUSPICION that a law has been violated
Automobile Stops:
Roadblocks
Must
(1) Stop cars based on a neutral, articulable standard
(2) Be designated to serve purposes closely related to a problem pertaining to cars and their mobility (Drunk Driving v. Stops to search cars for drugs)
Automobile Stops:
Mistake of Law
Police Officer’s mistake of law does not invalidate a seizure as long as the mistake was REASONABLE
Automobile Stops:
Seizure of Occupants
Automobile stop is considered a seizure of both the car and the occupants (Gives passengers standing to raise a wrongful stop challenge)
Automobile Stops:
Ordering Occupants
Officers may order the occupants of a vehicle to get out of the car & frisk them if there is a reason they might be armed or dangerous
Automobile Stops:
Pre-textual Stop
If police have probable cause to conduct a traffic stop (violation of a traffic law, the may stop the car EVEN IF THEIR INTENT IS INVESTIGATE ANOTHER CRIME
Detention to Obtain a Warrant
If Police believe that a suspect will destroy evidence in their dwelling, police may detain a suspect for a reasonable time to prevent him from destroying evidence
Occupation of Premises
A VALID SEARCH WARRANT for contraband allows the police to detain the occupants of a premises
Evidentiary Search and Seizure (List / Steps)
Step 1: Was the search conducted by a GOVERNMENT AGENT?
If Yes - Step 2 ; If No - NO VIOLATION
Step 2: Did the search violate Ds REASONABLE EXPECTATION OF PRIVACY?
If Yes - Step 3 ; If No - NO VIOLATION
Step 3: Did the government Obtain a PROPER WARRANT?
If Yes - NO VIOLATION ; If No - Step 4
Step 4: Was the search within a WARRANTLESS EXCEPTION?
If Yes - NO VIOLATION ; If NO - VIOLATION
Step 1 / Government Agent Requirement
4th Amendment only protect people from unlawful GOVERNMENT conduct. Search has to be conducted by either the police or private citizens that are deputized or given other law enforcement powers.
Step 2 / Privacy Requirement (Expectation of Privacy)
Person has an expectation of privacy for
(1) Places that they OWN or have a RIGHT OF POSSESSION to
(2) Their HOME, incluing the CURTILAGE around the home (regardless of ownership or possession)
(3) Places where they were an OVERNIGHT GUEST
Step 2 / Privacy Requirement (NO Expectation of Privacy)
Person has NO expectation for privacy in:
(1) Their HANDWRITING
(2) Their VOICE
(3) Paint on the side of their vehicle
(4) ACCOUNT RECORDS held by a bank
(5) Areas OUTSIDE OF THE HOME/CURTILAGE
(6) Trash
(7) Land VISIBLE FROM A PUBLIC PLACE (either above (think helicopter) or from the street)
(8) SMELL of car or luggage
***NOTE: Using advanced technology which give the police a way to look through normal barriers DO NOT remove an expectation of privacy (think thermal scanners / GPS devices)
Step 3 / Proper Warrant (Probable Cause)
A warrant will only be issued if there is PROBABLE CAUSE to believe that seizable evidence will be found
Step 3 / Proper Warrant (Affidavit)
A valid warrant must contain adequate information for a magistrate to conclude whether or not probable cause is sufficient
Step 3 / Proper Warrant (False Warrant)
Search warrant issued on the basis of an affidavit will be invalid where
(1) A FALSE STATEMENT was included in the affidavit
(2) The Affiant INTENTIONALLY OR RECKLESSLY made the false statement AND
(3) The false statement was MATERIAL to the finding of probable cause
Step 3 / Proper Warrant (Requirements of Warrant)
Warrant must describe with reasonable precision:
(1) The place to be searched
(2) The Items to be seized
Step 3 / Proper Warrant (Execution of the Warrant)
The police must KNOCK AND ANNOUNCE their presence
Unless the officer has a reasonable suspicion, based on facts, that announcing would be:
(1) Futile
(2) Dangerous
(3) Would inhibit the investiagtion
Step 3 / Proper Warrant (Scope)
Scope of the search is limited to
(1) The places specified in the warrant
(2) What is reasonably necessary to discover the items in the warrant
Police may seize any contraband or fruits / instrumentalities of the crime, whether or not they are specified in the warrant
Step 3 / Proper Warrant (3rd Parties on the Premises)
A warrant to search a premises authorizes the Police to DETAIN BUT NOT SEARCH people occupying the property not named in the warrant
3rd Parties include all persons in the IMMEDIATE VICINITY of the dwelling at the time of the search
Step 4 / Warrantless Searches (List)
6 Situations which permit a warrantless search
(1) Search Incidental to CONSTITUTIONAL ARREST
(2) Search of AN AUTOMOBILE
(3) Items within PLAIN VIEW
(4) Police given VOLUNTARY CONSENT
(5) STOP & FRISK
(6) HOT PURSUIT
Step 4 / Warrantless Searches (Constitutional Arrest Exception - General Rule)
Pursuant to a constitutional arrest the police MAY search the person and areas which the person might be able to obtain weapons or destroy evidence
Contemporaneous Requirement
The search pursuant to the lawful arrest must be CONTEMPORANEOUS in time and place with the actual arrest
Step 4 / Warrantless Searches (Constitutional Arrest Exception - Specialized Situations)
Automobile
Police may conduct a search of the PASSENGER COMPARTMENT of a car if at the time of the arrest
(1) The arrestee is UNSECURED and may gain access the interior of the car or
(2) The Police reasonably believe that evidence of the offense FOR WHICH THE PERSON WAS ARRESTED may be found in the vehicle
Cell Phones
CAN NOT search digital information w/o a warrant; BUT can look at the phone itself
Impounding
Upon being impounded, the police can conduct an INVENTORY search of the arrestee’s belongings PURSUANT TO ESTABLISHED PROCEDURE
DNA Tests
If there is probable cause to hold a suspect for a SERIOUS OFFENSE, the police may take a cheek swab for purposes of conducting a DNA test
Step 4 / Warrantless Searches (Automobile Exception)
If the police have probable cause to believe that a vehicle contains fruits or instrumentalities, or evidence of a crime they may search the WHOLE VEHICLE and ANY CONTAINER THAT COULD HOLD EVIDENCE. Extends to passenger’s belongings.
Step 4 / Warrantless Searches (Plain View - Elements)
Police may make a warrantless seizure where:
(1) The police are legitimately on the premises
(2) The police discover evidence, fruits, or instrumentalities of the crime
(3) The evidence is in plain view AND
(4) The Police have probable cause to believe that an item is evidence, fruits, or instrumentalities of the crime
Step 4 / Warrantless Searches (Consent)
Police are entitled to search any place where the suspect gives voluntary consent.
Sub Rules
(1) Scope may be limited by the suspect (allowed to look in the bedroom but not downstairs - Police would need warrant for downstairs)
(2) Knowledge of the right to withhold is NOT A PREREQUISITE (Cops do not have to alert suspect that they have the right to refuse, just can’t exert too much pressure)
Step 4 / Warrantless Searches (Consent - Authority to Consent Rule & Co-Occupants)
Any person with an APPARENT RIGHT TO USE OR ENTER PROPERTY may consent to a search and any evidence found may be used against other owners and occupants
Co-Occupants
(1) Where occupant consents - Evidence can be used against a co-occupant
(2) Where occupant consents and co-occupant refuses - Police can not search w/o warrant
(3) Where occupant consents and co-occupant has been arrested (but it is known consent would be refused) - Evidence can be used against co-occupant
Step 4 / Warrantless Searches (Stop & Frisk - General Rule)
Rule - Stop
Officer may stop someone W/O PROBABLE CAUSE if there is an ARTICULABLE AND REASONABLE SUSPICION of criminal activity
Rule - Frisk
If the officer reasonably believes that the person may be ARMED AND DANGEROUS, a protective frisk may be undertaken
Step 4 / Warrantless Searches (Stop & Frisk - Scope of Intrusion & Admissibility)
Scope of Frisk
A frisk generally is restricted to a PATDOWN OF CLOTHING unless there is specific information about a hidden weapon
Admissibility
Any item that an officer reasonably believes is a weapon or contraband based on “plain feel” that are identified are admissible
Step 4 / Warrantless Searches (Hot Pursuit)
Police in hot pursuit of a fleeing FELON may make a warrantless search and seizure AND pursue the subject into a private dwelling.
Step 4 / Warrantless Searches (Evanescent Evidence)
Police are permitted to seize evidence without a warrant if the evidence is likely to disappear before a warrant can be procured
Administrative Inspections and Searches (Examples)
The government may do the following without a warrant pursuant to Administrative Inspections
(1) Searches to seize spoiled foods
(2) Searches of a highly regulated industry (nuclear)
(3) Strip searches of prisoners prior to transport
(3) Searches of airline passengers
(4) Searches of government employees desks and file cabinets (based on a work related suspicion)
(5) Drug tests of R&R employees following an accident
(6) Drug tests of public school students engaged in extracurricular activities
Searches in Foreign Country / Border Checks
Neither a Warrant, Probable Cause, nor Reasonable Suspicion is needed to conduct a border search. Patrols around the boarder need only REASONABLE SUSPICION to stop a car suspected of carrying illegal aliens
Note: These Searches include searching international mail and searches
