Searches & Seizures, Probable Cause, Warrants

Question 1

4th amendment

Answer 1

the right people have to be secure of their persons, papers and effects against unreasonable searches and seizures
no warrants should be issued without probable cause an must be supported by oath or affirmation as well as state particular place to be searched and/or person or things to be seized

Question 2

5th amendment

Answer 2

no person should be forced to be a witness against themselves in a criminal case or be deprived of their life, liberty or property w/o due process of law

Question 3

6th amendment

Answer 3

all persons accused in a criminal case has the right to assistance of council for their defense

Question 4

14th amendment

Answer 4

no state can deprive a person of their life, liberty or property w/o due process of law
*incorporated Bill of Rights to apply to states - 1925

Question 5

Government Action Requirement

Answer 5

constitutional rules apply their protections against the actions of the government - people employed by or who are acting as agents of the government

does NOT provide protections against private citizens

Question 6

Exclusionary Rule

Answer 6

any evidence obtained in violation of the constitution can not be used in a criminal trial to establish guilt

Mapp v. Ohio states rule is needed to:
deter police misconduct, protect constitutional rights & safeguard judicial integrity

Question 7

What is a Search & Katz Test

Answer 7

1. Police perform a search when they intrude into an area in which:
   a. the defendant exhibited a subjective expectation of privacy and
   b. society is prepared to recognize that expectation as reasonable
2. when police electronically listen to and record a persons phone call, it violates the privacy they relied on therefore becoming a search

Question 8

Use of a Wired Informant

Answer 8

a suspect does not have a justifiable nor constitutionally protected expectation that a person they are speaking to will not inform the police about their conversation

a search does not occur when police use a wired informant to record/transmit conversations with a criminal suspect

Question 9

Use of a Pen Register

Answer 9

the use of a pen register installed on telephone company property to record the numbers dialed from an individuals telephone is not a search
a person does not have a reasonable expectation of privacy to believe that numbers he voluntarily discloses to third party companies will remain private

Question 10

Searches of Open Fields

Answer 10

1. An intrusion of an open field is not an unreasonable search because it is not a person, house, papers or effects, and
   an individual may not legitimately demand privacy for activities conducted outside in fields except in the curtilage - the area immediately surrounding the home
2. to be considered the curtilage, it must be intimately tied to the home. to make that determination, a court must consider:
   - the proximity of the area claimed to be the curtilage of the home
   - whether the area is included within an enclosure surrounding the home
   -the nature of the uses to which the area is put
   -the steps taken by the resident to protect the area from observation by passerby

Question 11

Aerial Observation

Answer 11

not a search if curtilage is visible from public navegable airspace, an expectation that the property is protected by such observation is unreasonable and not honored by society

Question 12

Searches of Trash

Answer 12

does not occur when police gather and sort through a persons trash left for collection outside the curtilage of the home, it is left readily accessible to the public therefore not objectively reasonable to expect it to remain private

Question 13

Thermal Imaging of Homes

Answer 13

when police use a thermal imager or a similar device that is not in general public use to explore details of the home that would previously have been unknowable w/o physical intrusion, the surveillance is a search and is unreasonable w/o a warrant

Question 14

Tracking Devices

Answer 14

1. a search does NOT occur when police use an electronic tracking device, installed on someone else’s property, to reveal information about the defendants public movements, once in his possession
   a person traveling in public roads does not have a reasonable expectation of privacy in his movements from one place to another esp. when they can be obtained through ordinary visual surveillance
2. a search occurs when police use electronic tracking device to obtain information about the interior of a public residence that they could not have obtained by observation from outside the curtilage. Expectation of privacy in the private residences of individuals is recognized as reasonable

Question 15

Use of Drug Sniffing Dogs

Answer 15

1. the use of a narcotics detection dog to sniff a travelers luggage in a public airport does NOT constitute a search
2. to sniff an individuals vehicle during a lawful traffic stop does NOT constitute a search
3. to investigate surroundings IS a search. The home and the curtilage are constitutionally protected areas and bringing a drug sniffing dog onto the premises is an unlicenced physical intrusion

Question 16

Two Tests for determining whether there has been a Search

Answer 16

1. Katz Reasonable Expectations of Privacy test
2. The Jones Physical Intrusion Test: a search occurs when the govt obtains information by physically intruding upon persons, houses, papers or effects

Question 17

Defining and Applying Probable Cause

Answer 17

1. Probable cause for a search (arrest) exists where the facts and circumstances within an officers knowledge and of which she has reasonably trustworthy info are sufficient in themselves warrant a person of reasonable caution in the belief that an offense has been or is being committed (by the person the officer intends to arrest) and that evidence bearing on that offense will be found in the place to be searched.
   Under the common-sense “totality of circumstances” approach to probable cause, a court should look for:
   a. a reliable source of information including the source’s basis of knowledge
   b. detailed information suggestive of criminal activity
   c. verification or corroboration of the info by police
   * these 3 elements are not rigid independent requirements; instead they should be considered collectively and additional information in one area can compensate for a deficit of info in another

Question 18

Probable Cause: An Objective Standard

Answer 18

an objective standard focused on what “reasonable officer” would believe with the exact same knowledge and info. The subjective beliefs and motivations of any particular officer are not relevant to the probable cause determination

Question 19

Neutral and Detached Magistrate Requirement

Answer 19

in order to be valid, a search or arrest warrant must be issued by a neutral and detached magistrate. The magistrate need not be a lawyer or judge but he must be capable of determining probable cause and must not have financial interests or connections to law enforcement that would compromise his independence

Question 20

The Oath or Affirmation Requirement

Answer 20

1. whether written, oral, or electric, statements made by police to a magistrate in support of an application for a warrant must be sworn and sufficient to est. probable cause
2. an insufficient statement or affidavit in support of a warrant cannot be rehabilitated by later sworn testimony concerning information known to the police but not disclosed to the magistrate at the time of the application for the warrant was under review

Question 21

Particularity Requirement

Answer 21

1. a warrant must particularly describe the place to be searched and the persons or things to be seized. the description need not be perfect but must be such that an officer can reasonably ascertain and identify the location or items intended
2. the inclusion of some general language in a warrant does not render the warrant itself impermissibly general as long as the language is constructed narrowly and is not used by the police to justify a search for or seizure of items not relevant to the crime under investigation
3. a description in a warrant that is insufficiently particular may be saved by an adequate description in the affidavit or app submitted in support of warrant but only if warrant itself uses appropriate words of incorporation and the supporting affidavit or application accompanies the warrant

Question 22

Anticipatory Warrants

Answer 22

1. the fact that an item which police are authorized to search for and seize is not currently located at the place described in a warrant is immaterial as long as there is a probable cause to believe that it will be there when the search warrant is executed
2. Prerequisites of probability must be satisfied for an anticipatory warrant to meet the requirement of probable cause and the supporting affidavit must provide the magistrate with sufficient info to evaluate both aspects of the probable cause determination
   a. there must be probable cause to believe that a triggering condition - such as arrival of contraband - will occur
   b. there must be a probable cause to believe that if the triggering conditions occurs, there is a fair probability that contraband or evidence of a crime will be found in a particular place

Question 23

Knock and Announce Requirement

Answer 23

1. In the absence of exigent circumstances, police must knock and announce their presence before entering a residence to execute a search warrant
2. in order to justify a “no knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence
3. evidence discovered following a knock and announce violation will not be suppressed under the exclusionary rule

Question 24

Treatment of persons present when a Search Warrant is executed

Answer 24

1. in the absence of individualized suspicion of wrongdoing, police may not search a person present in the premises while executing a warrant authorizing a search of the premises
2. police officers may detain a person present on the premises while executing a search warrant. If necessary for the officer safety or other legitimate reasons, such as detention may last for several hours and include use of handcuffs
3. the authority of police to detain a person while executing a search warrant does not violate the 4th amend and does not require suppression of any evidence discovered if the mistakes was objectively reasonable and understandable

Question 25

Suppression Hearings

Answer 25

A defendant who wishes to challenge the statements of a warrant application must show that officers deliberately falsified information or recklessly disregarded the truth. Even then if he is able to do so, that information is set aside, if the remaining content still supports probable cause, no suppression hearing will be granted. Otherwise it will.

Question 26

Exigent Circumstances: Hot Pursuit

Answer 26

Police may enter and search private property without a warrant if they are in hot pursuit of a suspected felon. The scope of the search is as large as reasonably needed to prevent the suspect from possibly escaping or attempting to resist.
Police need a warrant to make a routine felony arrest in a suspects home, even if the crime is a serious one.
The SC is undecided whether hot pursuit exception to the warrant requirement applies in cases where police are attempting to apprehend a suspect who has committed only a minor offense

Question 27

Exigent Circumstances: Destruction of Evidence

Answer 27

The exigent circumstances exception permits police to perform a search w/o a warrant if they reasonably believe it is necessary to prevent the imminent destruction of evidence. Exigency is determined based on totality of circumstances.

Question 28

Exigent Circumstances: Emergency Aid or Assistance

Answer 28

Police officers may enter a home w/o a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. This exception does not depend on the officers’ subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only an objectively reasonable basis fro believing that a person in the house is in need of immediate aid.

Question 29

Search of Homes Incident to Arrest

Answer 29

When the arrest is made, police may search the arrestees’ person and the area into which the arrested might reach where he could gain possession of a weapon or destructible evidence. The search incident to arrest may be made without probable cause.
Police may also conduct a warrantless protective sweep - a cursory visual inspection of those places in which a person might be hiding.
-as a precautionary measure and without probable cause or reasonable suspicion, police can look in closets and other spaces immediately adjoining the place of arrest from which an attack could be launched.
-beyond areas immediately adjoining the place of arrest, police must have reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Question 30

Searches of Persons and Personal effects Incident to Arrest

Answer 30

When an arrest is made, police may search the arrestees person, pockets, personal effects and other areas in to which the arrested might reach where he could gain possession of a weapon or destructible evidence. The search may be made w/o a search warrant and w/o probable cause or reasonable suspicion. The search need not take place immediately upon arrest; it can occur upon arrival at the place of detention or with good reason even hours later.
When police make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, the police may, w/o a warrant, probable cause or reasonable suspicion, take and. analyze a cheek swab of the arrestees DNA. Like fingerprinting & photographing, the warrantless taking and analysis of the arrestees DNA is legitimate booking procedure.
Does not permit police to search the contents of an arrestees cell phone. In most circumstances, must obtain a warrant to search the contents.

Question 31

Search of Vehicles incident to arrest

Answer 31

Police may perform a warrantless search of a vehicle incident to a recent occupants arrest if the arrested is within reaching distance of passenger compartment at the time of the search or if it is reasonable to believe that the vehicle contains evidence relevant to crime of arrest.
The police may perform a warrantless search of a vehicle incident to arrest, only if police actually arrest one of the occupants. If they decide to issue a citation rather than make arrest, exception does not apply.

Question 32

The Plain View Exception

Answer 32

Police may seize an item in plain view if they are legitimately or lawfully on the premises AND it is immediately apparent that the item is evidence of a crime, contraband or otherwise subject to seizure.
An officer can use ALL of his senses when he is lawfully present at a particular location. Accordingly, there is a “plain touch” corollary to the exception that allows an officer to seize an item if he is legitimately in a position to feel it & if it is immediately apparent, based only on quick touch and w/o manipulation or “search”, that the item is evidence of a crime, contraband or otherwise subject to seizure.

Question 33

The Automobile Exception

Answer 33

Police may search a vehicle w/o a warrant if they have probable cause to believe evidence or contraband is inside the vehicle. The search of the vehicle need not take place immediately; it can be done after the vehicle has been taken to the police station is no longer mobile.
The search may include any containers or personal effects within the vehicle, regardless whether the containers or personal effects belong to the driver or the passenger.
IF the probable cause supporting the search extends only to certain items or containers within the vehicle, the police must confine their search to those items or containers and may not search the entire vehicle.

Question 34

Inventory Searches

Answer 34

If police are lawfully in possession of private property, such as an impounded vehicle or bag or purse belonging to an arrestee, they may inventory the contents w/o probable cause or a warrant as long as the inventory is undertaken as a part of a routine police policy or procedure. Any evidence or contraband discovered during routine inventory is admissible.

Question 35

Consent Searches

Answer 35

Police may perform a search w/o a warrant and w/o probable cause if they have valid consent. In order to demonstrate valid consent, the prosecution must show the consent was voluntarily given, and is no the result of duress or coercion, express or implied.
Voluntariness is a question of fact to be determined from totality of circumstances. While knowledge of a right to refuse consent is one factor to be taken into account, the prosecution need not prove such knowledge to establish voluntary consent.
A third party’s consent to a search is valid if it is voluntary and if the police reasonably believe that the third party has common authority over the premises. Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes.
A physical present residents refusal of consent to a search prevails over another resident’s permission. But once the objecting resident is no longer physically present, the police may search with the voluntary consent of another resident who has common authority over the premises.

Question 36

Voluntary Encounters

Answer 36

Police may approach individuals at random on the street in airports, on buses, and in other public places to ask them questions and to request consent to search their persons or luggage. Even when police have no basis for suspecting a particular individual, they may pose questions, ask for id, and request consent to a search, provided they do not induce cooperation by coercive means.
If a reasonable innocent person, approached and questioned by the police under the same circumstances, would feel free to refuse the officers request, terminate the encounter, or simple leave, the encounter does not constitute a seizure.
In determining whether a reasonable person would feel free to refuse an officer’s request, terminate the encounter, or simply leave, a court should examine the totality of circumstances; location, number of officers, appearance of officers, behavior, tone and language, physical contact
A person is not seized until he actually yields to an officers physical force of show of authority.

Question 37

Line between Stops and Arrest

Answer 37

Investigative methods used by police during a stop should not be more intrusive then necessary to confirm or dispel the officer’s suspicions within a short period of time. A stop that is prolonged or that involves moving the suspect to a different location for further questioning will make the stop into an arrest, therefore requiring probable cause, esp. if investigation was not reasonably diligent.

Question 38

when do police need an arrest warrant?

Answer 38

An officer can make an arrest in a public place as long as there is probable cause to believe the person has committed a criminal offense.
To make a routine felony arrest at a home, the police need a warrant.
To make a warrantless arrest in a home, there needs to be exigent circumstances. The underlying arrest is important to consider in deciding whether the E.C exist. The E.C exception should be rarely sanctioned if only a minor offense has been committed.
Encounter (consensual) = not a seizure
Stop (detention) = seizure
Arrest = seizure

Question 39

For what crimes may a person be arrested?

Answer 39

If an officer has PC to believe a person has committed a minor offense in his presence, he may arrest the offender.
SC has not decided whether 4th amendment permits an officer to make a warrantless arrest in public for a minor offense that did not occur in the officers presence.
Even if arrest is improper under state law, as long as there is probable cause for arrest there is no 4th amendment violation.

Question 40

Independent source exception to ex rule

Answer 40

allows admission of evidence that is discovered under unlawful means if it is obtained by a source independent from illegal actions.
if evidence obtained during unlawful search allows the police to apply/secure for a search warrant, the independent source exception DOES NOT APPLY.

Question 41

inevitable discovery exception to ex rule

Answer 41

allows admission of illegally obtained evidence if prosecution can prove, by preponderance of evidence, that the evidence would have been ultimately and inevitably discovered by lawful means.
Prosecution not required to prove absence of bad faith by police in order to invoke exception.

Question 42

Inadequate Causal connection and Attenuation of Taint

Answer 42

Ex. rule should not be applied if there is an inadequate causal connection between the illegal conduct of the police and the disputed evidence
OR if the connection between the unlawful conduct of police and the discovery of the challenged evidence has become so attenuated (reduced) as to dissipate the taint.
To determine, must look at:
-the temporal proximity between the illegal police conduct and evidence
-the presence of intervening circumstances
-the purpose and flagrancy of the official misconduct
When police make a warrantless arrest inside a suspects home in violation of Payton v. New York, any evidence discovered or statements made by suspect in the home are inadmissible. BUT if police have probable cause to arrest, the ex rule does not impede the use of a statement made by the suspect outside of his home, even though statement is taken after an arrest is made in the home