Seizure

Question 1

What is Probable Cause?

Answer 1

Probable cause exists where the facts and circumstances within the affiant’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that:
1. an offense has been commited by the person to be arrested; or
2. evidence subject to search and seizure will be found in the placce to be searched

Question 2

What is an arrest?

Answer 2

Common law- the application of force to the body with intent to restrain (Torres v. Madrid)

Question 3

2 questions for seizure generally

Answer 3

1. is the goverment activity a seizure under the 4th amendment
2. if the goverment activity is a seizure then is it reasonable?

Question 4

Physical resraint prong of the Hodari seizure test

Answer 4

any contact, however slight, amounts to physical restraint
-the physical conduct must “objectively” manifest an intent to restraint

Question 5

In addition to the requirement of intent to restrain, a seizure by force, absent submission, lasts only as long as

Answer 5

the application of force. That is to say that the Fourth Amendment does not recognize any continuing arrest during the period of fugitivity….

Question 6

Traffic stops and seizures

Answer 6

Traffic stops equal a seizure under the 4th Amendment

Question 7

Probable Cause Requirements

Answer 7

1. Particular Information
2. Totality of the Circumstances
3. Individualized Suspicion and Common Enterprise

Question 8

Intent needed with physical force

Answer 8

Intent to restrain

Question 9

When the police arrests or searches without a warrent, they

Answer 9

initially make the probable cause decision themselves
- But upon a motion to supress evidence found in the arrest or search, they initally make the probable cause decison themselves

Question 10

Typical events that lead up to probable cause

Answer 10

1. inciting indicident
2. investigation
3. probable cause

Question 11

two routes to go once you get probable cause

Answer 11

1. magistrate
2. police

Question 12

once you get probable cause
- go to magistrate

Answer 12

warrents- search and/or arrest

Question 13

once you get probable cause
- police do not go to magistrate

Answer 13

1. Arrest (and sometimes just a search)
2. an arrest sometimes authorizes a warrentless search incident to an arrest

Question 14

Aguilar-Spinelli Test

Answer 14

1. Basis of Knowledge- how did informant get the info?
2. Veractity Prong: Why should I believe this person?
   - Creditablity of the information
   - Reliability of the information

Question 15

Spinelli Concurrance

If an officer swears that there is gambling equipment at a certain address, the possibilities are

Answer 15

1. he personally saw it
2. he inferred its presence from other personal observations
3. he obtained the information from someone else

Question 16

If the affidavit for a warrent just asserts the location of gambling equipment that is insufficient for PC because

Answer 16

there is no basis of knowledge

Question 17

If the affidavit just asserts the location of gambling equipment and that the information came from an informant that is insufficient for PC because

Answer 17

there is no basis of (the informant’s) knowledge or reliability

Question 18

5 ways to determine veracity/reliabilty

Answer 18

1. presumed reliabilty og affiant under oath (police or prosecutor)
2. an innocent citizen with a good reputation
3. an innocent citizen making statement against his/her interest
4. informant with past record of reliability
5. informany who accurately predicted the future

Question 19

Probable cause helps make a search/seizure

Answer 19

reasonable

Question 20

probable cause can be determined by

Answer 20

• magistrate (when a warrent is sought)
• police
• judge (when police act under a warrentless search/seizure objection)