Searches and Seizures

Question 1

Seizure

Answer 1

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

Question 2

Arrest

Answer 2

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)

Question 3

Investigatory Detentions

Answer 3

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

Question 4

Investigatory Detentions:

Duration and Scope

Answer 4

No specific time limit, but police must act in a diligent and reasonable manner in confirming or dispelling suspicions

Question 5

Automobile Stops:

General Rule

Answer 5

Police Officers MAY NOT stop a car unless they have a REASONABLE SUSPICION that a law has been violated

Question 6

Automobile Stops:

Roadblocks

Answer 6

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)

Question 7

Automobile Stops:

Mistake of Law

Answer 7

Police Officer’s mistake of law does not invalidate a seizure as long as the mistake was REASONABLE

Question 8

Automobile Stops:

Seizure of Occupants

Answer 8

Automobile stop is considered a seizure of both the car and the occupants (Gives passengers standing to raise a wrongful stop challenge)

Question 9

Automobile Stops:

Ordering Occupants

Answer 9

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

Question 10

Automobile Stops:

Pre-textual Stop

Answer 10

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

Question 11

Detention to Obtain a Warrant

Answer 11

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

Question 12

Occupation of Premises

Answer 12

A VALID SEARCH WARRANT for contraband allows the police to detain the occupants of a premises

Question 13

Evidentiary Search and Seizure (List / Steps)

Answer 13

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

Question 14

Step 1 / Government Agent Requirement

Answer 14

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.

Question 15

Step 2 / Privacy Requirement (Expectation of Privacy)

Answer 15

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

Question 16

Step 2 / Privacy Requirement (NO Expectation of Privacy)

Answer 16

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)

Question 17

Step 3 / Proper Warrant (Probable Cause)

Answer 17

A warrant will only be issued if there is PROBABLE CAUSE to believe that seizable evidence will be found

Question 18

Step 3 / Proper Warrant (Affidavit)

Answer 18

A valid warrant must contain adequate information for a magistrate to conclude whether or not probable cause is sufficient

Question 19

Step 3 / Proper Warrant (False Warrant)

Answer 19

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

Question 20

Step 3 / Proper Warrant (Requirements of Warrant)

Answer 20

Warrant must describe with reasonable precision:

(1) The place to be searched
(2) The Items to be seized

Question 21

Step 3 / Proper Warrant (Execution of the Warrant)

Answer 21

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

Question 22

Step 3 / Proper Warrant (Scope)

Answer 22

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

Question 23

Step 3 / Proper Warrant (3rd Parties on the Premises)

Answer 23

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

Question 24

Step 4 / Warrantless Searches (List)

Answer 24

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

Question 25

Step 4 / Warrantless Searches (Constitutional Arrest Exception - General Rule)

Answer 25

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

Question 26

Step 4 / Warrantless Searches (Constitutional Arrest Exception - Specialized Situations)

Answer 26

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

Question 27

Step 4 / Warrantless Searches (Automobile Exception)

Answer 27

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.

Question 28

Step 4 / Warrantless Searches (Plain View - Elements)

Answer 28

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

Question 29

Step 4 / Warrantless Searches (Consent)

Answer 29

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)

Question 30

Step 4 / Warrantless Searches (Consent - Authority to Consent Rule & Co-Occupants)

Answer 30

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

Question 31

Step 4 / Warrantless Searches (Stop & Frisk - General Rule)

Answer 31

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

Question 32

Step 4 / Warrantless Searches (Stop & Frisk - Scope of Intrusion & Admissibility)

Answer 32

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

Question 33

Step 4 / Warrantless Searches (Hot Pursuit)

Answer 33

Police in hot pursuit of a fleeing FELON may make a warrantless search and seizure AND pursue the subject into a private dwelling.

Question 34

Step 4 / Warrantless Searches (Evanescent Evidence)

Answer 34

Police are permitted to seize evidence without a warrant if the evidence is likely to disappear before a warrant can be procured

Question 35

Administrative Inspections and Searches (Examples)

Answer 35

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

Question 36

Searches in Foreign Country / Border Checks

Answer 36

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