Searches & Seizures Flashcards
1
Q
What does the 4th Amendment protect against?
A
- Protects people from unreasonable government search and seizures
And
- Requires probable cause for government search and seizures.
* More Info:* 4th Amendment
2
Q
What does the 5th Amendment protect against?
A
- Prohibits government coercion of confessions
- Prohibits unreliable identifications
And
- Provides privilege against self-incrimination
* More Info:* 5th Amendment
3
Q
What does the 6th Amendment protect provide?
A
- Provides a person who is formally accused of a crime the assistance of counsel during all critical stages of the adversarial process
And
- Requires testimonial evidence be subject to adversarial testing (the confrontation clause)
4
Q
How is the U.S. Constitution incorporated to the states?
A
The 14th Amendment
5
Q
A state statute that grants police the authority to engage in conduct that violates the Federal Constitutional standard will be held?
A
Invalid
6
Q
The 4th Amendment applies only to who?
A
The government only.
It does not apply to private conduct.
7
Q
What is the Silver Platter Doctrine and its effect?
A
A private party acting on his own does not trigger the 4th Amendment when he acquires evidence that the government later seeks to introduce in a criminal prosecution.
8
Q
When a private party acts at the direction of a government agent or pursuant to an official policy to search an individual, is the 4th Amendment triggered?
A
Any search or seizure directed by the government is subject to 4th Amendment scrutiny
9
Q
When is a person seized as the result of government action?
A
When a reasonable person in his position would not feel free to leave or otherwise terminate the encounter
More Info: Seizure
10
Q
When is the 4th Amendment’s reasonableness requirement triggered?
A
With any government seizure of a person or property.
11
Q
What is the 4th Amendment protection if a reasonable person would feel free to leave or terminate a government encounter?
A
There is no seizure, and it does not trigger the reasonableness requirement.
12
Q
When does a government seizure occur?
A
- Physical force is used to restrain a suspect
Or
- The government makes a show of authority followed by submission
13
Q
If a suspect is located in a naturally confined location (such as an airplane), what is the test for a seizure?
A
Whether a reasonable person would feel free to terminate the encounter with the government agent
14
Q
What are all arrests?
A
Seizures
15
Q
What is a Terry Stop?
A
A brief investigatory seizure where the police require the suspect to interact with them, and which triggers the 4th Amendment
More Info: Terry Stop
16
Q
What is the permissible duration of a Terry Stop?
A
The time necessary to confirm or deny the suspicion
17
Q
What is the effect of the suspicion prompting a Terry Stop being confirmed?
A
The suspicion becomes probable cause, and an arrest is justified.
18
Q
What is the effect of the suspicion prompting the Terry Stop being not confirmed?
A
The seizure must terminate.
19
Q
Differentiate a Terry Stop from an arrest.
A
A Terry Stop is an investigation of reasonable suspicion, and an arrest is an instigation of an action.
20
Q
What government action amounts to property being seized?
A
The police must take some action that results in a meaningful interference with a possessory interest.
21
Q
Is property seized if police place something on the property (a tracker) that does not interfere with the owner’s use of the property?
A
The property is not seized.
22
Q
What does a search triggers?
A
The reasonableness requirement of the 4th Amendment
23
Q
What is a search?
A
Any government:
- Investigatory trespass against a person or their property
Or
- Intrusion into a reasonable expectation of privacy
* More Info:* Search
24
Q
What is an investigatory trespass?
A
Any government activity that intrudes upon a person, home, papers, or effects for the purpose of finding or gathering evidence of a crime.
25
A **trespass** qualifies as a 4th Amendment **search** only if the police have what **intent**?
Investigatory motive, meaning they are actively gathering evidence of a crime
26
When may a person **assert** his **4**th Amendment rights?
Only when the government intrudes on a reasonable expectation of privacy
27
What is **required** for a reasonable **expectation** of **privacy**?
1. Defendant has a subjective expectation of privacy by making an effort to shield the thing or the activity from the public
And
2. The expectation is objectionably reasonable
28
A person does **not** have a reasonable **expectation** of **privacy** in something she knowingly does what to?
Exposes to the public
29
What is the **expectation** of **privacy** when the **objects** to be seized are held out to the **public**?
There is no reasonable expectation of privacy.
30
When is police use of **animals** trained to **detect** only **contraband** a **search**? When is it not a search?
Use of such animals is a search when used in an investigatory trespass.
Use of such animals is not a search at all other times (the smell is exposed to the public).
*More Info:* [Police Use of Animals](http://education.findlaw.com/student-rights/using-drug-sniffing-dogs-and-canine-units.html)
31
List **examples** of when there is not a reasonable **expectation** of **privacy**.
1. Handwriting exemplars
2. Voice exemplars
3. Bank records
4. Phone call records
5. Sender and recipient of email
6. Conversations the suspect believes are private that the police record with the consent of the other party to the conversation
7. Open fields: unoccupied areas beyond the curtilage of the home, even if police trespass into the open fields
8. Naked-eye observations of private property by air so long as police comply with flight limitations
9. Aerial photography of the large fenced in area around an industrial complex
And
10. Discarded property: such as commingled garbage and abandoned rental premises.
32
What must a **search** or seizure be to **comply** with the **4**th Amendment?
It must be reasonable.
33
How does a **warrant** **impact** the **reasonableness** of a search?
It creates a presumption of reasonableness.
34
What must a defendant prove to **overcome** the **presumption** of **reasonableness** that a **warrant** provides?
1. The warrant was not based on probable cause
2. The magistrate was not neutral or detached
Or
3. The warrant failed to describe with particularity the:
a. Thing to be seized
or
b. The place to be searched
35
What is the classification of a government action that uses **devices** that are not in public use to **see through** a reasonable **expectation** of **privacy**?
It is a search
36
What is a **search** or seizure **without** a **warrant** presumptively?
Unreasonable, and the government bears the burden of proving the search or seizure fell within an established exception to the warrant requirement.
37
What are the **requirements** for a valid **warrant**?
A warrant must be issued by:
1. A neutral and detached magistrate
2. Based on probable cause
And
3. Describe with particularity the thing to be seized or the place to be searched
38
In **applying** for a **warrant**, what must the **information** (affidavit) presented to the magistrate **provi****de**?
Relevant facts that lead to the conclusion that:
1. It is more probable than not that a person committed a crime
Or
2. Evidence will be found at a location
39
In **applying** for a **warrant**, what must the **information** presented to the magistrate **not** be?
Stale, meaning that enough time has passed such that the information is no longer good.
40
When will the method of **warrant execution** render the police action **unreasonable**?
The method of executing the warrant shocks the conscience.
41
What is the **knock and announce** rule?
Police must normally knock and announce their identity before entering a home to execute a warrant.
*More Info:* [Knock and Announce](https://www.law.cornell.edu/wex/knock-and-announce_rule)
42
When do the police **not** need to **knock** and **announce**?
Knock and announce is not required if police have reasonable suspicion to believe that doing so will:
1. Endanger officers
2. Lead to the destruction of evidence
Or
3. Lead to flight of the suspect
43
What is the **effect** of a **violation** of the **knock** and **announce** rule?
1. The police violate the 4th Amendment
However:
2. The violation does not prompt evidence exclusion
44
What is the **analysis** for **search** and seizure **questions**?
Step 1: Determine whether there was a search or seizure
Step 2: Ask whether there was a valid warrant
a. If so, look for facts that indicate the warrant was defective and the police acted in bad faith when they relied on it
or
b. If not, then consider whether an exception applies.
Step 3: Does the search or seizure fall into one of the established exceptions:
a. If so, the search or seizure is reasonable
b. If not, the search or seizure is unreasonable
45
**Without** a **warrant**, the **reasonableness** of a search or seizure **requires** **police** to establish what?
Individualized suspicions that amounts to either probable cause or reasonable suspicion
46
When is **probable cause** always **required**?
For a full scale intrusion to:
1. Find evidence
Or
2. Arrest
47
**Reasonable suspicion** justifies what **intrusions**?
Brief investigatory seizures
Or
Cursory searches
48
Define **probable cause.**
Facts and circumstances that would warrant a reasonable person to conclude that:
1. The individual in question has committed a crime
Or
2. Evidence of criminal activity can be found at a particular location
* More Info:* [Probable Cause](https://www.law.cornell.edu/wex/probable_cause)
49
**Probable cause** is evaluated from what **standpoint**?
An objective standpoint. What an officer subjectively believed does not matter.
50
**Probable cause** is **always** **required** to engage in what type of search?
A full scale intrusion
51
What types of **evidence** establishes **probable** **cause**?
1. Eye witness accounts
2. Forensic evidence and tests
3. Suspect's own admissions or conduct
And
4. Tips from confidential or anonymous informant
52
When is a **tip** sufficient to **trigger** **probable cause**?
The totality of the circumstances test is used to assess the reliability of an informant's tip to establish probable cause. The factors considered are:
1. The reliability of the informant
2. The basis of the informant's knowledge
And
3. Corroboration by further investigation
53
Define **reasonable** **suspicion**.
A reasonable belief based upon articulable information {more than a mere hunch} that the suspect has or is about to engage in illegal or criminal activity.
*More Info:* [Reasonable Suspicion](https://www.flexyourrights.org/faqs/what-is-reasonable-suspicion/)
54
**Reasonable suspicion** will **never** **justify** what type of search or seizure?
An arrest or a full-blown evidentiary search
55
What will **transform** an officer's **subjective** opinion into a reasonable **articulable** **belief**?
Some verifiable objective fact to support her suspicion
56
What is **required** for an **arrest**?
Probable cause is always required for an arrest.
57
What do police need to **arrest** a person **in public**?
Only probable cause
58
When is an **arrest warrant** required?
To arrest a person in their own home
59
What do **exigent** circumstances **allow** for?
A warrantless entry into a suspect's home.
*More Info:* [Exigent Circumstances](https://www.law.cornell.edu/wex/exigent_circumstances)
60
What are the **types** of **exigent** circumstances?
1. The offense is more serious than a minor misdemeanor
2. The officer did not unlawfully create the exigency, and
a. An arrest attempt outside the home is thwarted because the suspect retreats into the home
b. There is insufficient time to get a warrant because delay would allow the subject to evade arrest or destroy evidence
Or
c. The arresting officer is in hot pursuit and has probable cause to effect a valid arrest.
61
When can a **reasonable suspicion** that crime is about to or has just occurred be **established**?
1. Police observations and eyewitness reports
2. Running from police in a high crime neighborhood
Or
3. An informant's tip coupled with police investigation that corroborates the accuracy of the informant's predictions
62
What is the effect of a **tip** that provides nothing more than **existing information**?
The tip does not establish even reasonable suspicion.
63
What is the permissible **scope** of a **Terry Stop**?
The time required for an officer acting in due diligence to:
1. Confirm
or
2. Deny the suspicion
64
How can **reasonable** suspicion **rise** to **probable** cause?
If during the investigatory stop the police officer obtains additional information rising to the level of probable cause, the Terry Stop may be escalated to an arrest and the suspect may be searched incident to that arrest.
65
How does an officer's **improper** **subjective** basis **effect** a **Terry** **Stop**?
The stop is still valid if there was an objectively reasonable basis for the stop.
66
When is **no warrant** **required** to seize property?
When the property is in the officer's plain view
67
What are the **requirements** of the **plain view** doctrine?
No warrant is required to seize property if:
1. The police are in a **lawful vantage** point when they observe the item
2. The **incriminating** nature of the item is **immediately** apparent
And
3. The officer has lawful **access** to **sieze** the item.
* More Info:* [Plain View Doctrine](http://law.justia.com/constitution/us/amendment-04/20-plain-view.html)
68
When is the **plain view** doctrine **active**?
At all times: with or without a warrant.
69
What is the **plain view** doctrine an **exception** to?
The warrant requirement for a seizure; however, it does not justify a warrantless search for contraband.
70
What does the **plain view** doctrine **not allow**?
A search for contraband
71
What is the **scope** of a **warranted** **search** limited to?
The premises or the person described in the warrant
72
**Contraband** **not** named **in** a **warrant** may be lawfully **seized** pursuant to the plain view doctrine, so long as what?
The contraband comes into view within the scope of the warrant
73
What **authority** does a search **warrant** confer to the **police**?
1. Search named places
And
2. Search named persons
74
A search **warrant** for a **premise** carries with it what **right** **against** the **occupants**?
The right to detain occupants during the search but not the right to search them
75
A **warrantless** **search** is unreasonable unless it falls within one of the following established **exceptions**.
1. Searches incident to lawful arrests
2. Plainview
3. Automobile Exception
4. Border Exception
5. Consent Special Needs Requirement
6. Hot pursuit
7. Exigent circumstances
And
8. Administrative Search
76
What do searches incident to a lawful arrest (**SITLA**) allow for?
A search of the arrestee and the area within their immediate control (wingspan, lunging area)
*More Info:* [SITLA](http://nationalparalegal.edu/conLawCrimProc_Public/ProtectionFromSearches&Seizures/ExToWarrantReq.asp)
77
When is **SITLA** **triggered**?
During a lawful arrest. During an arrest based on probable cause.
78
What is the **authority** to conduct a **search** **incident** to a **citation**?
There is no authority to search
79
When can a search **incident** to a **lawful** **arrest** occur?
The search must be:
1. Contemporaneous with the arrest
or
2. Precede it
80
If a suspect is arrested in a **home**, what is the **scope** of a **search** **incident** to a lawful **arrest**?
The area within his lunging distance,
≠ the home
81
If police have a **reasonable suspicion** that **others** in a **home** may put them **at risk**, what action may the police take?
The police can conduct a cursory protective sweep to find people lying in wait with the search limited to places where people may hide.
82
When an **arrest** is effected while the **defendant** is in a **car** or has immediately exited the car, what is the **scope** of **SITLA**?
An officer may search:
1. Arrestee
2. If defendant was able to access their car, then the interior of the car
3. If defendant was unable to access their car, then they can search for evidence related to arrest.
83
If the **arrestee** has genuine **access** to the **interior** of the **car** after being placed under arrest, what is the **scope** of **SITLA**?
The interior of the car and all containers within the interior of the car
84
If, as the result of being placed under arrest, the **arrestee** does **not** have genuine **access** to the interior of the **car**, when is a **search** of the **interior** permitted?
Only when the police have a reasonable belief that evidence related to the crime of arrest is in the car
85
What is the **automobile exception** to the warrant requirement?
Police may search an automobile or any other self-propelled conveyance (motor home, boat, or airplane) without a warrant as long as they have probable cause. This exception applies to all containers in the vehicle.
86
Once a **container** is put inside an **automobile**, what can the police search?
The container so long as they have probable cause to search the vehicle
87
What is the **scope** of the search in the **automobile exception**?
The scope extends to wherever it is likely the suspect hid the contraband.
88
How does the **automobile exception** to the warrant requirement apply to **immobile vehicles**?
It is inapplicable if it absolutely cannot move
89
What is the **special needs doctrine**?
Police are permitted to use checkpoints to conduct brief seizures and/or limited searches in response to a public safety danger that cannot be addressed by complying with the normal individualized suspicion/warrant requirements.
90
What **must** be the primary **purpose** of a **special needs search** or seizure?
To protect the public from imminent danger. If the purpose is general crime control, then the exception is inadequate.
91
Common **special needs checkpoint** searches include?
1. Sobriety checkpoints
2. Search for recently escaped prison inmates
3. Counter-terrorism checkpoints
And
4. Checkpoints to search for suspects of a recent crime
92
What are the **requirements** for a **special needs search** or seizure?
1. It must be based on a **fixed formula** that deprives individual officers of the discretion to select the subjects (e.g. stopping every third car)
2. It must be **n****arrowly tailored** in scope to address the specific threat
And
3. It must be conducted in a location and in a manner that minimizes citizen anxiety
93
Can police officers randomly stop a vehicle to **check license** and **registration**?
No, not without reasonable suspicion
94
What does the **border exception allow**?
Customs officials to:
1. Stop vehicles at permanent checkpoints located at or near the border (including international airports and ports)
And
2. Conduct routine searches of people and property
95
What is required for a **non-routine** **border** search?
Reasonable suspicion
96
If an individual **waives** her right to privacy by **consenting** to a **search**, what is the **legality** of the search?
The search is reasonable and there is no need for probable cause.
97
When is **consent** to a search **valid**?
When it is voluntary, which is assessed based upon the totality of the circumstances
98
When is **consent** to search **invalid**?
Gained by:
1. Asserting a fake warrant
2. Fraud
3. Duress
Or
4. An unlawful police threat (a threat to do something that the officer has no authority to do).
99
What is the **requirement** on **police** to **inform** persons of ability to **decline consent**?
There is none
100
What determines the **scope** of **consent**?
1. Officer's request
And
2. The scope of the defendant's permission
* More Info:* [Scope of Consent](http://www.aele.org/consent.html)
101
What is the validity of **consent** obtained **following** an **unlawful seizure**?
The consent is the fruit of the poisonous tree
102
**Who** can **consent** to a **search**?
Any person who has joint control or use of shared premises may consent to a valid search and any evidence seized can be used against any occupant.
103
When is police **reliance** on **third party consent** reasonable?
1. The person granting the consent has actual authority over the place searched
Or
2. A reasonable person would believe that person had such authority
104
Can a **landlord** give **consent** to search a **tenant's** residence?
No
105
Can an **employer** give **consent** to **search** an employee's **private storage** area?
No
106
When may police **not reasonably rely** on **third party consent**?
The other resident to a home is present and objecting
107
When police are in actual **hot pursuit**, what may the police do?
1. Enter and search a private dwelling while in hot pursuit of a fleeing suspect. Police may enter dwelling of the suspect or of any other person
And
2. Police may execute a warrantless arrest of the suspect on the premises and seize any contraband that satisfies the plain view requirements.
* More Info:* [Hot Pursuit](http://www.tdcaa.com/node/7759)
108
What is the **exigent circumstances** warrantless search **exception**?
Police may search without a warrant when the situation indicates waiting to obtain a warrant will result in an imminent:
1. Destruction of evidence
2. Escape of the accused
Or
3. Risk to police or others in the area
109
When does **exigency justify** a **warrantless search** and seizure of evidence in or on a suspect's body?
1. There is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained
And
2. The procedure for seizing the evidence is reasonable and does not shock the conscience
110
What does **exigency** allow the **warrantless search** of at a **crime scene**?
1. Other killers
And
2. Victims
111
What is a **Terry Search** (frisk)? When is it **justified**?
A Terry frisk is a cursory protective search for **weapons** that create an imminent danger to an officer or others in close proximity.
A Terry frisk is justified only by reasonable suspicion that the suspect is **armed and dangerous**. It is not automatic because the police did a terry stop.
112
Differentiate the justification for:
Terry Stop v. Terry Frisk
Terry Stop: reasonable suspicion that a crime is happening or about to happen
Terry Frisk: reasonable suspicion that a suspect is armed and dangerous
113
What is the scope of a **Terry Frisk**?
The exterior of the clothing to determine if there is a weapon
114
What may an officer do if, in a **Terry Frisk**, the officer feels something he **immediately** knows is a **weapon** or contraband?
The plain touch doctrine: the officer may seize such contraband without a warrant.
115
What may an officer do if, in a **Terry Frisk**, the officer feels something he immediately knows is not a weapon but upon **manipulation,** feels may be **contraband**?
The manipulation exceeds the scope of the Terry Frisk and the seizure is unreasonable.
116
What are two circumstances where the **Terry Frisk** is extended **beyond** a **person**?
1. In an automobile, where police have reasonable suspicion a person stopped will have immediate access to a weapon
And
2. In a cursory sweep of the interior of a home, when police enter the home to serve a warrant based on reasonable suspicion that there are others who might be present and dangerous to the police
117
What are **administrative** **searches**?
Agency compliance inspections whereby compliance with administrative regulations or health and safety codes are verified for a non-criminal purpose
*More Info:* [Administrative Searches](https://www.law.cornell.edu/cfr/text/21/1316.07)
118
What are the **requirements** for **administrative** searches?
Reasonable suspicion
119
What are the **requirements** to **exclude/suppress** evidence?
1. The unreasonable search or seizure must trigger the remedy of exclusion
2. The defendant claiming the remedy (seeking exclusion) must have standing
And
3. The facts do not support applying an exception to the exclusionary rule
120
**Exclusion** requires a **violation** of what rights?
The movant's 4th Amendment privileges
121
When does **standing** for **exclusion** occur?
The defendant must show that the unreasonable search or seizure intruded on his personal constitutional rights.
*More Info:* [Standing for Exclusion](https://en.wikipedia.org/wiki/Exclusionary_rule)
122
When can a defendant assert **standing** for **exclusion** on **someone else's** behalf?
Never
123
What must a defendant show to **prove standing** for **exclusion**?
The defendant must first show that the 4th Amendment violation was directed against his 4th Amendment protection, not someone else's.
124
When does a defendant have **standing** for **exclusion**?
He has an ownership or a possessory interest in the place searched or the item seized
125
Does the person in possession of a **car rental** have **standing** for exclusion?
Yes
126
Do **passengers** of a car have **standing** to complain about **searches** of the car?
No
127
When do **guests** in another's **home** have **standing** for **exclusion**?
1. Overnight guests have standing to challenge a search of the home
And
2. Non-overnight guests do not have standing
128
What is the **effect** of the **exclusionary rule**?
A defendant who has Fourth Amendment standing may invoke the exclusionary rule to prohibit the government from introducing evidence obtained as a direct or derivative result of an unreasonable search and seizure
129
What is the **fruit** of the **poisonous** **tree** **doctrine**?
Any additional evidence derived from an initial illegality, is tainted fruit of the poisonous tree and thus suppressible.
*More Info:* [Fruit of the Poisonous Tree Doctrine](https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree)
130
When is **evidence** **tainted** by fruit of the **poisonous** **tree**?
If there is a but-for connection between the evidence the prosecution seeks to admit and a violation of the defendant's constitutional rights.
131
Will a **miranda** **violation** qualify as a **poison tree** and taint further evidence?
No, the only consequence of a miranda violation is the inadmissibility of a confession.
132
What are the **exceptions** to fruit of the **poisonous tree** doctrine?
1. Independent source
2. Attenuation
And
3. Inevitable discovery
* More Info:* [Exceptions to the FPTD](http://nationalparalegal.edu/conLawCrimProc_Public/ProtectionFromSearches&Seizures/ExclusionaryRule.asp)
133
What is the **independent source exception** to the fruit of the poisonous tree doctrine?
If the evidence is obtained from a lawful independent source it is not tainted.
134
What is the **inevitable discovery exception** to the fruit of the poisonous tree doctrine?
Future evidence is not tainted if the police establish they would have inevitably discovered the evidence through a different and independent source.
135
What is the **attenuation exception** to the fruit of the poisonous tree doctrine?
Evidence may be so distant from the initial illegality that the taint of the poison is purged and the evidence is admissible.
*More Info:* [Attenuation](http://definitions.uslegal.com/a/attenuation-doctrine/http://definitions.uslegal.com/a/attenuation-doctrine/)
136
What is a common **source** of the **attenuation exception**?
When police obtain a voluntary confession following an unlawful arrest (as long as it does not come right after).
137
What **factors** support **attenuation**?
1. Evidence discovered in a different location
2. The passage of time between discovery
3. A different officer discovered
And
4. A valid miranda warning
138
What is the **good faith exception** to exclusion?
When police act in good faith reliance on a warrant that is subsequently ruled invalid, the evidence seized will not be subject to exclusion.
139
What are the **limits** on the **good faith exception** to exclusion?
Inapplicable when:
1. A reasonable officer would not have relied upon a warrant that is later found to be invalid
2. An officer lies or misleads the magistrate
3. Where the warrant is so facial defective that an officer should not rely upon it
Or
4. Where the reasonable officer knows the magistrate is not neutral and attached
