Searches & Seizures Flashcards
What does the 4th Amendment protect against?
- Protects people from unreasonable government search and seizures
And
- Requires probable cause for government search and seizures.
* More Info:* 4th Amendment
What does the 5th Amendment protect against?
- Prohibits government coercion of confessions
- Prohibits unreliable identifications
And
- Provides privilege against self-incrimination
* More Info:* 5th Amendment
What does the 6th Amendment protect provide?
- 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)
How is the U.S. Constitution incorporated to the states?
The 14th Amendment
A state statute that grants police the authority to engage in conduct that violates the Federal Constitutional standard will be held?
Invalid
The 4th Amendment applies only to who?
The government only.
It does not apply to private conduct.
What is the Silver Platter Doctrine and its effect?
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.
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?
Any search or seizure directed by the government is subject to 4th Amendment scrutiny
When is a person seized as the result of government action?
When a reasonable person in his position would not feel free to leave or otherwise terminate the encounter
More Info: Seizure
When is the 4th Amendment’s reasonableness requirement triggered?
With any government seizure of a person or property.
What is the 4th Amendment protection if a reasonable person would feel free to leave or terminate a government encounter?
There is no seizure, and it does not trigger the reasonableness requirement.
When does a government seizure occur?
- Physical force is used to restrain a suspect
Or
- The government makes a show of authority followed by submission
If a suspect is located in a naturally confined location (such as an airplane), what is the test for a seizure?
Whether a reasonable person would feel free to terminate the encounter with the government agent
What are all arrests?
Seizures
What is a Terry Stop?
A brief investigatory seizure where the police require the suspect to interact with them, and which triggers the 4th Amendment
More Info: Terry Stop
What is the permissible duration of a Terry Stop?
The time necessary to confirm or deny the suspicion
What is the effect of the suspicion prompting a Terry Stop being confirmed?
The suspicion becomes probable cause, and an arrest is justified.
What is the effect of the suspicion prompting the Terry Stop being not confirmed?
The seizure must terminate.
Differentiate a Terry Stop from an arrest.
A Terry Stop is an investigation of reasonable suspicion, and an arrest is an instigation of an action.
What government action amounts to property being seized?
The police must take some action that results in a meaningful interference with a possessory interest.
Is property seized if police place something on the property (a tracker) that does not interfere with the owner’s use of the property?
The property is not seized.
What does a search triggers?
The reasonableness requirement of the 4th Amendment
What is a search?
Any government:
- Investigatory trespass against a person or their property
Or
- Intrusion into a reasonable expectation of privacy
* More Info:* Search
What is an investigatory trespass?
Any government activity that intrudes upon a person, home, papers, or effects for the purpose of finding or gathering evidence of a crime.
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
When may a person assert his 4th Amendment rights?
Only when the government intrudes on a reasonable expectation of privacy
What is required for a reasonable expectation of privacy?
- Defendant has a subjective expectation of privacy by making an effort to shield the thing or the activity from the public
And
- The expectation is objectionably reasonable
A person does not have a reasonable expectation of privacy in something she knowingly does what to?
Exposes to the public
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.
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
List examples of when there is not a reasonable expectation of privacy.
- Handwriting exemplars
- Voice exemplars
- Bank records
- Phone call records
- Sender and recipient of email
- Conversations the suspect believes are private that the police record with the consent of the other party to the conversation
- Open fields: unoccupied areas beyond the curtilage of the home, even if police trespass into the open fields
- Naked-eye observations of private property by air so long as police comply with flight limitations
- Aerial photography of the large fenced in area around an industrial complex
And
- Discarded property: such as commingled garbage and abandoned rental premises.
What must a search or seizure be to comply with the 4th Amendment?
It must be reasonable.
How does a warrant impact the reasonableness of a search?
It creates a presumption of reasonableness.
What must a defendant prove to overcome the presumption of reasonableness that a warrant provides?
- The warrant was not based on probable cause
- The magistrate was not neutral or detached
Or
- The warrant failed to describe with particularity the:
a. Thing to be seized
or
b. The place to be searched
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
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.
What are the requirements for a valid warrant?
A warrant must be issued by:
- A neutral and detached magistrate
- Based on probable cause
And
- Describe with particularity the thing to be seized or the place to be searched
In applying for a warrant, what must the information (affidavit) presented to the magistrate provide?
Relevant facts that lead to the conclusion that:
- It is more probable than not that a person committed a crime
Or
- Evidence will be found at a location
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.
When will the method of warrant execution render the police action unreasonable?
The method of executing the warrant shocks the conscience.
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
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:
- Endanger officers
- Lead to the destruction of evidence
Or
- Lead to flight of the suspect
What is the effect of a violation of the knock and announce rule?
- The police violate the 4th Amendment
However:
- The violation does not prompt evidence exclusion
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
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
When is probable cause always required?
For a full scale intrusion to:
- Find evidence
Or
- Arrest
Reasonable suspicion justifies what intrusions?
Brief investigatory seizures
Or
Cursory searches
Define probable cause.
Facts and circumstances that would warrant a reasonable person to conclude that:
- The individual in question has committed a crime
Or
- Evidence of criminal activity can be found at a particular location
* More Info:* Probable Cause
Probable cause is evaluated from what standpoint?
An objective standpoint. What an officer subjectively believed does not matter.
Probable cause is always required to engage in what type of search?
A full scale intrusion
What types of evidence establishes probable cause?
- Eye witness accounts
- Forensic evidence and tests
- Suspect’s own admissions or conduct
And
- Tips from confidential or anonymous informant
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:
- The reliability of the informant
- The basis of the informant’s knowledge
And
- Corroboration by further investigation
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
Reasonable suspicion will never justify what type of search or seizure?
An arrest or a full-blown evidentiary search
What will transform an officer’s subjective opinion into a reasonable articulable belief?
Some verifiable objective fact to support her suspicion