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Criminal Procedure > Warrantless Searches > Flashcards

Warrantless Searches Flashcards

1
Q

What are the 8 circumstances where no warrant is required?

(Hint: ESCAPIST)

A

ESCAPIST:

  1. Exigent circumstances (3 types)
  2. Search incident to arrest
  3. Consent
  4. Automobile
  5. Plain view
  6. Inventory
  7. Special needs
  8. Terry stop and frisk
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2
Q

What are the three exigent circumstances where no warrant is needed for a search?

(Es in ESCAPIST)

A
  1. “Evanescent evidence” (i.e., evidence that woul dissipate or disappear in the time it would take to get a warrant)
  2. Hot pursuit of fleeing felon
  3. Emergency aid exception (police may enter if there is an OBJECTIVELY reasonable basis for believing a person inside is in need of emergency aid)
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3
Q

What is evanescent evidence?

(Exigent circumstance #1 in the E in ESCAPIST)

A

Evidence that would dissipate or disappear in the time it would take to get a warrant

(NOTE: natural dissipation of blood-alcohol does not create an exigency sufficient to justify a warrantless blood alcohol test!)

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4
Q

What may police do without a warrant when in hot pursuit of a fleeing felon? (Exigent circumstance #2)

What evidence discovered during that time is admissible?

A

Police may enter the home of a suspect or a 3d party to search for a fleeing felon.

(N.B. Any evidence discovered in plain view while searching for the suspect is admissible!)

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5
Q

What is the Emergency Aid exception?

(Exigent circumstance #3 in the E in ESCAPIST

A

Police may enter residence if (i) there is an objectively reasonable basis for (ii) believing that a person inside (iii) is in need of emergency aid (iv) to address or prevent injury

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6
Q

What are the requirements for a search incident to arrest?

A
  1. Arrest must be lawful
  2. The search must be contemporaneous in time and place with the arrest
  3. Search must be confined to the person’s wingspan (which includes the body, clothing, and any containers within arrestee’s immediate control)
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7
Q

What is a wingspan search incident to arrest?

A

Includes the body, clothing , and any containers within the arrestee’s immediate control

(No regard to the offense for which the arrest was made)

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8
Q

What are the limitations on cellphones in a search incident to arrest?

A

May not search digital data on the cell phone, but May examine the cell’s physical aspects to ensure that it will not be used as a weapon

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9
Q

What is the rule for DNA evidence in a search incident to arrest?

A

Police may take a DNA sample by swabbing cheek of individual arrested for a serious offense

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10
Q

NY QUESTION

What is the NY limit on searches incident to arrest?

A

To search containers within the wingspan, an officer must SUSPECT that the arrestee is ARMED

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11
Q

What is the scope of an automobile search incident to arrest?

A

Officer may search the interior cabin, including closed containers

MAY NOT search the the trunk

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12
Q

What is the restriction on automobile searches incident to arrest? (MBE)

(The rule on “Secured” vs. “Unsecured” arrestees)

A

Once an officer has secured an arrestee (e.g., handcuffed him or placed him in a squad car), the officer may search the automobile ONLY IF he has reason to believe car may contain evidence relating to the crime for which the arrest was made

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13
Q

NY QUESTION

What is the NY rule for automobile searches incident to arrest?

A

Once occupant is out of the car, police cannot search containers inside the vehicle to look for weapons or evidence of crime

(Ex. Officer arrests Kramer for driving without a license and tells Kramer to stand in front of the car with his hands on the hood. Officer then searches the car and finds marijuana. Is search okay?

MBE: Yes, because Kramer is unsecured

NY: No, because Kramer is outside of the car)

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14
Q

What are four common issues w/r/t validity of consent?

A
  1. Was consent given voluntarily?
  2. What is the scope of the consent?
  3. Does the consenting party have apparent authority?
  4. Rules on shared premises
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15
Q

What constitutes consent to a search?

A

Consent must be voluntary

(N.B. For consent to be valid, officers do NOT need to tell someone that she has the right to refuse consent)

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16
Q

What is the scope of consent to search?

A

Consent to search extends to all areas that a reasonable officer would believe permission to search was granted

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17
Q

What is the effect of apparent authority on searches?

A

A consent from someone who lacks actual authority is valid if the officer reasonably believed that the consenting party had actual authority

(e.g., Houseguest lets cop into suspect’s apartment when cop doesn’t know guest doesn’t live there)

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18
Q

What are the (two) rules for searches of shared residences?

A
  1. When adults share a residence, ANY resident can consent to a search of common areas within
  2. IF co-tenants WHO ARE PRESENT disagree regarding consent, the objecting party prevails as to areas over which they share dominion and control
  3. Gloss on (2): IF the objecting co-tenant is removed from the premises for reasons unrelated to his refusal (e.g., lawful arrest), police may rely on the consent of the remaining consenting co-tenant
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19
Q

What is the justification for warrantless searches of automobiles? (2)

A
  1. Vehicles’ ready mobility
  2. Individuals lesser expectation of privacy in vehicles
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20
Q

What are the requirements for an Automobile search?

A

Probable cause to believe that contraband or evidence of crime will be found in the vehicle

21
Q

What is the permissible scope of an Automobile search?

A

May search the entire vehicle

May open any package, luggage, or container that could reasonably contain the item for which there was probable cause to search

22
Q

When is probable cause for an Automobile search measured?

A

Probable cause needed before initiating search, NOT at the time the car is pulled over

23
Q

What are the requirements for a Plain View search? (3)

A
  1. Lawful access to the place from which the item can be plainly seen
  2. Lawful access to the item itself (the item searched)
  3. Criminality of the item must be immediately apparent
24
Q

When may an Inventory search be conducted?

A

Arrestees: when booked into jail

Vehicles: when impounded

25
Q

What are the limitations on Inventory searches? (3)

A

Inventory searches are constitutional, assuming:

  1. Regulations governing them are reasonable in scope;
  2. Search itself complies with those regulations; AND
  3. Search is conducted in good faith (motivated solely by need to safeguard owner’s possessions and ensure officer safety) (N.B. This is one of the few areas where subjective intent matters! Good faith required)
26
Q

What is a Terry stop? Where can in take place?

A

Brief detention or seizure for the purpose of investigating suspicious conduct

(can take place ANYWHERE)

27
Q

What constitutes “seized” for a Terry stop?

A

Terry stop occurs where, based on totality of circumstances, a reasonable person would not feel free to leave OR to decline an officer’s request to answer questions

28
Q

What are the common factors that suggest seizure for a Terry stop? (3)

A
  1. Whether an officer brandishes a weapon (out of the holster)
  2. The officer’s tone and demeanor when interacting with the person questioned
  3. Whether the individual was told she had the right to refuse consent
29
Q

What constitutes Terry seizure when being pursued by the police?

A

A person is seized only if:

  1. He submits to the officer’s authority by stopping; OR
  2. The officer physically restrains him
30
Q

NY QUESTION

What is the NY rule for Terry seizure when being pursued by the police?

A

Police pursuit is a seizure in and of itself

31
Q

What are the rules for Terry traffic stops? (3)

A
  1. Both the driver and the passengers are seized, such that either can challenge the legality of the stop
  2. Officer may, in her discretion, order both driver and passengers out of the car
  3. Dog sniffs are permissible provided the sniff does not prolong the stop unreasonably
32
Q

What is a Terry frisk?

A

Pat down of body and outer clothing for weapons

33
Q

When is a Terry frisk justified?

A

Justified by officer’s belief that a suspect is armed and dangerous

34
Q

What can be seized during a Terry frisk?

A
  1. Officer can ALWAYS seize anything officer reasonably believes to be a weapon; AND
  2. If officer finds something she recognizes as contraband WITHOUT MANIPULATING THE OBJECT, it can be seized as well
35
Q

NY QUESTION

What is the NY rule for what can be seized during a Terry frisk?

A

NY: can only seize items only if they appear to be weapons

36
Q

What is a Terry car frisk?

A

If officer believes suspect is dangerous, he may search the passenger cabin

(Scope is limited to those areas where a weapon may be placed or hidden)

37
Q

What is a Protective Sweep (Terry frisk)?

A

When making an in-home arrest, Officer may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer’s safety

38
Q

What is the evidentiary standard for a Terry stop and frisk?

A

Reasonable suspicion (less than probable cause)

39
Q

What constitutes reasonable suspicion for a Terry stop?

A

Specific and articulable facts that inform an officer’s belief that criminal activity is present

(Officer’s subjective intent is irrelevant in evaluating legality of the stop – the standard is concerned solely with objective reasonableness)

40
Q

What constitutes reasonable suspicion for a Terry frisk?

A

Specific and articulable facts that suggest a suspect is armed and dangerous (not a general search for criminal evidence)

41
Q

What is the rule for establishing reasonable suspicion based on a tip?

A

Tip must contain sufficient predictive information that it can be corroborated by the police the the extent necessary to establish the informant’s reliability

42
Q

What is the evidentiary standard for a protective sweep?

A

IF making an in-home arrest: Officers have authority without probable cause or reasonable suspicion to look in areas adjacent to the place of arrest from which an attack could be imminently launched.

IF justifying a “sweep” of more remote areas: Officers must have additional facts sufficient to allow them to conclude that an individual who may threaten their safety is present in the area swept

43
Q

What are the SCOTUS-approved Special needs cases? (5)

A
  1. Drug testing
  2. Parolees
  3. School searches
  4. Border searches
  5. Non law-enforcement “primary purpose”
44
Q

What is the basic requirement for a Special Needs search?

A

The “special needs” of the law enforcement personnel, govt officials, school officials, etc. must be beyond a general interest in law enforcement

45
Q

What are the SCOTUS-approved Special needs cases involving DRUG TESTING?

A
  1. Railroad employees following an impact accident;
  2. Customs agents responsible for drug interdictions; AND
  3. Public school children who participate in any extracurricular activities
46
Q

What is the scope of Special needs searches of parolees?

A

Parolee and his home (as condition of parole)

47
Q

What is the scope of Special needs school searches?

A

Warrentless searches of the person and effects of public schoolchildren are permissible to investigate violations of SCHOOL RULES, provided:

  1. The search is reasonable at its inception; AND
  2. The search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction
48
Q

What is the scope of Special needs border searches?

A

No 4th amendment rights at the border with respect to routine searches of persons and effects (citizens or noncitizens)

49
Q

What is the non law-enforcement primary purpose test?

A

Special needs doctrine does not include law enforcement programs or practices whose primary purpose is to gather criminal evidence for general use by law enforcement

(e.g., Random alcohol test checkpoints for DWI okay, but drug stops are not)

Criminal Procedure (9 decks)

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