unreasonable search/seizures

Question 1

3 things needed for a warrent

Answer 1

1. particularity (particularly describing the place to be searched, the persons or things to be seized)
2. reasonable execution
3. probable cause

Question 2

DC v. Wesby (2018)

Cant all the conduct be explained away innocently?
Key Question to ask for probable cause

Answer 2

whether a reasonable officer could conclude – considering all of the surrounding circumstances, including the plausibility of the explanation itself – that there was a substantial chance of criminal activity

Question 3

Basis for arrest: unlawful entry

DC v. Wesby

Answer 3

Standard: knew or should have known entered without permission

Question 4

Two things to look at when executing a warrent

Answer 4

1. is it sufficiently particular? did the factual mistake invalidate the warrent?
2. was the police conduct reasonable in executing the seach?

Question 5

The place to be searched must be described in the warrant with

Answer 5

sufficient clarity that the officer executing it can identify it with reasonable effort
- Doesn’t have to be perfect and based on information known at the time presented to magistrate

Question 6

If a mistake is made in executing a warrant, the Court will allow the evidence to be used if

Answer 6

the law enforcement mistake was objectively understandable and reasonable

Question 7

does the 4th amendment warrent requirement require police officers to knock-and-announce prior to executing a warrent

Answer 7

yes, the police must knock and announce

Question 8

exception to the requirement that the police must knock and announce when executing a warrent

Answer 8

“In order to justify a “no-knock” entry, the police
must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”

Question 9

Basic rules of applies when the

Answer 9

exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable

Question 10

So what may constitute an exigent circumstance, allowing warrantless entry of a
home?

Answer 10

1. Imminent harm to others
2. a threat to the officer herself
3. destruction of evidence
4. escape from the home
5. flight

Question 11

Test in determining whether a situation is an exigent circumstance:

Answer 11

Under a totality of circumstances analysis – on a case-by-case basis - the delay required to obtain a warrant would bring about some real immediate and serious consequences

Question 12

Extingent Circumstances always present in felony drug cases

Results in assumption that all felony drug crimes will involve

Answer 12

“an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police”

Question 13

Extingent circumstances must be

Answer 13

reasonable

Question 14

For the exception of the extingent circumstances, the police officer must have a reasonable suspicion that knocking/announcing would be

Answer 14

dangerous, futile, or inhibit the effective investigation of crime

Question 15

When is a Seizure Reasonable?

• Probable Cause
• Magistrate
  (Arrest Warrent - so long as warrant is sufficiently descriptive (person) and reasonably executed)

Answer 15

Reasonable Seizure/Arrest

Question 16

When is a Seizure Reasonable?

• Probable Cause
• Police
• No Arrest Warrant -arrest made in public

Answer 16

Reasonable Seizure/Arrest

Question 17

When is a Seizure Reasonable?

• Probable Cause
• Police
• No Arrest Warrant -arrest made at home

Answer 17

unreasonable Seizure/Arrest

Question 18

When is a Seizure Reasonable?

• Probable Cause
• Magistrate
• Search Warrant - so long as warrant is sufficiently descriptive (person/place to be searched) and reasonably executed

Answer 18

Reasonable Search

Question 19

Probable cause relation to search/seizure

Answer 19

it helps make a search/seizure reasonable
- it can be determined by magistrate (when warrant is sought) or by judge (when police act under a warrantless search/seizure objection)
- is a totality of the circumstances analysis

Question 20

What does a warrant require?

Answer 20

More probable cause and then warrants - particular description requirement, reasonableness in execution

Question 21

Does the 4th Amendment forbid a warrentless arrest in the home, even if supported by probable cause

Answer 21

• No, to arrest an individual in his/her home, probable cause is not enough; instead, must have a warrant or an extingent circumstance
• “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance of the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant”

Question 22

2 requirements for getting an warrent

Answer 22

1. Officers/Prosecutors must submit an “affidavit in Supoort of Search Warrant”
2. “Probable cause must be determined by a neutral and detatched magistrate and not by the officer engaged in the often competitive enterprise of ferreting out crime.”

Question 23

What is Probable Cause?

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:

Answer 23

1. an offense has been committed by the person to be arrested; or
2. evidence subject to search and seizure will be found in the place to be searched

Question 24

Warrentless Searches and Seizures

Searches Incident to arrest

Answer 24

• Search of the Body – U.S. v. Robinson
• Search of the Home – Chimel v. California
• Search of the Vehicle – Arizona v. Gant

Question 25

# Analysis - It's a search, but it is reasonable? - Supported by a warrant? - Yes - Is Warrant Sufficient? (PC, Particular, descriptive, executed reasonably) - Yes

Answer 25

Lawful Search

Question 26

# Analysis - It's a search, but it is reasonable? - Supported by a warrent? - Is Warrant Sufficient? (PC, particular, descriptive, executed reasonably) - No

Answer 26

unlawful search (Exclusionary rule?)

Question 27

# Analysis - It's a search, but it is reasonable? - Supported by a warrant? - No - Exception to warrant requirement? - 8 Exceptions

Answer 27

1. Search Incident to an Arrest - Lawful arrest? - Where arrest occurred? 2. Automobile Exception 3. Hot Pursuit/Extingent Circumstances 4. Inventory Search 5. Protective Sweep 6. Plain View 7. Terry Stop 8. Consent

Question 28

# Analysis - It's a search, but it is reasonable? - Supported by a warrant? - No - Exception to warrant requirement? - 8 Exceptions - Yes

Answer 28

Lawful Search

Question 29

# Analysis - It's a search, but it is reasonable? - Supported by a warrant? - No - Exception to warrant requirement? - 8 Exceptions - No

Answer 29

- Unlawful Search (Exclusionary Rule?)

Question 30

Does the ‘search incident to an arrest’ exception to the warrant requirement allows for a full search of the person, as opposed to only a “safety” search

Answer 30

Yes, search incident to an arrest allows the police officer to search the entire person of the arrestee – not limited to where a gun or knife could be Analysis – An arrest based on probable cause alone is a reasonable search under the 4th Amendment. A search of the person incident to the arrest is an exception to the warrant requirement. This allows for a full search of the person.

Question 31

Can law enforcement may search the entire home when arresting an individual in his/her home

Answer 31

No, while police may conduct a warrantless search incident to an arrest while in the home, the search is limited to: 1. The arrestee's person; and 2. The area within the arrestee's immediate control, meaning the area from within which he/she might gain possession of a weapon or destructible device

Question 32

Search incidents to an arrest, first step and second step

Answer 32

1st: make sure the arrest is lawful 2nd: ask where the arrest is being made and what's being searched (e.g. a public search of the person, search of home, search of vehicle)

Question 33

# Personal story dodge caravan, sobriety test - Had probable cause to pull over - once speak to her...

Answer 33

the probable cause disappears

Question 34

Voluntariesness is a finding of fact determined by

Answer 34

the totality of the circumstances

Question 35

# Voluntariness factors The subjects knowledge of the right to refuse

Answer 35

is a factor but not dispositive

Question 36

Voluntariness and Totality of the Circumstance, Protective Measures

Answer 36

to ensure consent is voluntarily given, not product of duress or coersion (explicit or explicit)

Question 37

# Voluntariness Considerations for Confessions Subject-specific considerations:

Answer 37

1. Age 2. Education 3. Mental Stability 4. State of sobriety 5. Familiarity of the criminal justice process

Question 38

Exigent Circumstances serves as an exception to the

Answer 38

4th Amendment Warrent Requirement

Question 39

Extinget Circumstances Basic Rule

Answer 39

Applies “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable”

Question 40

What may constitute an extigent circumstance, allowing warrentless entry of a home?

Answer 40

- Imminent harm to others - A threat to the officer herself - Destruction of evidence - Escape from the home - Flight

Question 41

Extingent circumstances allowing warrantless entry of a home. Often works in conjunction with

Answer 41

plain view doctrine

Question 42

# Extingent circumstances Test in determing whether a situation is an extingent circumstance

Answer 42

- Under a totality of circumstances analysis – on a case-by-case basis - the delay required to obtain a warrant would bring about some real immediate and serious consequences - Reasonable belief entry is necessary

Question 43

Kentucky v. King (2011) | Issue, Holding

Answer 43

Issue: Whether the police can conduct a warrantless search based upon an exigent circumstance when it’s a police created exigent circumstance Holding: - Police may conduct a warrantless search of a home when there is an exigent circumstance - Even if the police “create” the exigent circumstance, they can still conduct a warrantless search based on the exigency exception so long as they did not gain entry to premises by means of an actual or threatened 4th Amendment violation

Question 44

Lange v. California (2021) | Issue, Holding

Answer 44

Issue: - Whether the pursuit of a fleeing misdemeanor suspect always – or more legally put, categorically – qualifies as an exigent circumstance Holding: - No. In determining whether an exigent circumstance justifies a warrantless entry of the home, the determination must be made on case-by-basis, utilizing a totality of the circumstances analysis to determine that the emergency present allows insufficient time to get a warrant

Question 45

# Lange v. California (2021) Going Forward: Need to understand basics of extingent circumstances... allows for

Answer 45

warrentless entry of the home

Question 46

# Lange v. California (2021) Generally, will be a case-by-case determination as to whether the circumstances allow for

Answer 46

insufficent time to get a warrent

Question 47

# Lange v. California (2021) When flight is involved (hot pursuit), we perhaps get two different rules: | Misdemeanor, Felony

Answer 47

1. For a misdemeanor, still case-by-case determination 2. For a felony, strong language from the Court that suggests Santana and King have established a categorical rule for felonies; meaning that when police have PC of a felony and are in hot pursuit, an exigent circumstance exists that allows them a warrantless entry of the home

Question 48

# Lange v. California (2021) “When the totality of the circumstances shows an emergency – such as 1, 2, 3, 4, – the police may act without waiting. And those circumstances . . . Include the flight itself”

Answer 48

1. imminent harm to others 2. a threat to the officer or himself 3. distruction of evidence 4. escape from the home

Question 49

Basic rule of plain view doctrine

Answer 49

An objective of an incriminating nature may be seized without a warrant if it is “plain view” of a police officer lawfully present at the scene

Question 50

Plain view doctrine is not an exception to the warrent requirement, but rather a justification for

Answer 50

the police to conduct a warrantless seizure of the evidence in plain view

Question 51

Court in Coolidge provides that an article is in plain view and subject to warrantless seizure by police if | 3

Answer 51

1. Police lawfully make an initial intrusion or otherwise be in a position from which they can view a particular area; 2. Police must discover incriminating evidence inadvertently; and 3. It is immediately apparent to police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure

Question 52

# Maryland v. Buie (1990) Can a Protective Sweep be a reasonable search: Balance Government Interest Against Privacy Interest

Answer 52

When reasonable: 1. as an incident to the arrest, the offices could as a precautionary measure and without any suspicion look in any closets or space immediately adjoining the place of arrest from where an attack can be launched; AND/OR 2. when there are articulable facts, which taken together with the rational inferences from those facts, would warrant a reasonable prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene

Question 53

# Maryland v. Buie (1990) Scope of a protective sweep

Answer 53

May extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises”

Question 54

# Maryland v. King (2013) Key to decision - Suspicionless searches:

Answer 54

“when faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual circumstances may render a warrantless search or seizure reasonable” - Above justifies the warrantless search, but it still must be reasonable ## Footnote This case falls under this umbrella as there is a diminished expectation of privacy and minimal intrusion

Question 55

# Maryland v. King (2013) To decide whether the warrentless search is reasonable...

Answer 55

weigh the promotion of legitimate governmental interests against the degree to which the search intrudes upon an individual’s privacy

Question 56

As the Court encounters new types of warrantless searches, they will determine whether

Answer 56

the government interest outweighs the privacy interest

Question 57

With warrentless searches, if the court finds that the goverment interests outweighs the privacy interest it's likely | plus when court has done test and with new warrentless tests

Answer 57

a reasonable search, but still needs to be performed consistent with the appropriate scope (as determined by the Court) - But when the Court has done that test for us – we know those types of searches are reasonable, so long as performed within the proper scope - As we encounter new types of warrantless searches – that we haven’t seen before – will likely need to be able to apply the balancing test

Question 58

2 criteria when conducting a protective sweep

Answer 58

1. must have reasonable suspicion 2. must be performed within proper scope

Question 59

Balencing test for if a protective sweep is a reasonable search

Answer 59

Balencing goverment interest against privacy interest

Question 60

When a warrentless blood draw is allowed

Answer 60

when there is actual extingent circumstances (evidence disspating due to natural process is not enough)

Question 61

# Warrentless Blood Draw Rule: Extingency exists when

Answer 61

1. BAC evidence is dissapating 2. Some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrent application

Question 62

Hearing "Flush the stash in my house"

Answer 62

works as an extingent circumstance

Question 63

What two things do you need for plain view doctrine?

Answer 63

1. Lawful vantage point (ex. in scope of warrent) 2. Probable cause that the item is contraband

Question 64

plain view in the home

Answer 64

need more then plain view - can use to get a warrent

Question 65

Smelling Marijuana to get a pipe

Answer 65

Smell of Marijuana is enough for probable cause of a pipe

Question 66

# Colorado v. Bertine (1987)

Question 67

# Colorado v. Bertine (1987)

Question 68

# Colorado v. Bertine (1987) If the police have lawfully impounded a vehicle, they may, pursuant to an established standard procedure, secure and inventory the vehicle’s contents in order to:

Answer 68

1. Protect the owner’s property while it remains in police custody; 2. Protected the police from claims or disputes over lost or stolen property; and 3. Protect the police from potential danger

Question 69

The fact that police procedures give the officer discretion as to whether to impound or not does invalidate the inventory exception, so long as

Answer 69

that discretion is exercised according to standard criteria

Question 70

In terms of scope, inventory search may extend to containers, so long as

Answer 70

weapons or valuables might be found therein