2009 Mbe Crim Pro -- Search And Seizure

Front 1

Basic Rule: 3 types of government actors

Back 1

1: publicly paid police (on or off duty)
2: private citizens under the direction of the police
3: privately paid police deputized with the power of arrest

Front 2

Rule: Areas with a reasonable expectation of privacy

Back 2

1: persons
2: homes (including surrounding curtilage area)
3: papers
4: effects

Front 3

Rule: No Expectation of Privacy in. . .

Back 3

1: paint scrapings on the outside of car
2: bank account records
3: things seen from public airspace
4: garbage at the curb
5: sound of voice
6: odors from car or luggage
7: handwriting
8: anything seen across open fields

Front 4

Rule: Right to Challenge a search of Premises

Back 4

1: owners
2: residents
3: overnight guests

NOT business visitors

Front 5

Rule: Challenge from the owners of seized property

Back 5

ONLY if the owner had a reasonable expectation of privacy in the area where the property was seized.

Front 6

Rule: Challenge from Passengers in Car

Back 6

ONLY if the passenger has a reasonable expectation of privacy in the item searched or seized.

Front 7

NYS Distinction: Challenges from Passengers in Cars

Back 7

CAN Challenge the possession of weapons if possession is attributed to them

Front 8

Warrants: Probable Cause

Back 8

"A fair probablity that contraband or evidence of crime will be found in the area searched"

1: hearsay evidence is ADMISSIBLE to establish probable cause
2: may rest on anonymous informants tips, IF the police can corroborate enough of the tipsters information to make "a common sense practical determination" that probable cause exists.

Front 9

NYS Distinction: Probable Cause for Warrants

Back 9

Aguilar Spinelli test for Tipsters

1: application must demonstrate BOTH the veracity/reliability AND the basis of the informants knowledge
2: if police do not known basis, may satisfy if observation confirms sufficient details suggestive of the criminal activity in question.

Front 10

Rule: Warrant Requirements

Back 10

1: Probable Cause
2: Particularity

Front 11

Warrants: Standard for Particularity

Back 11

Must specify the place to be searched AND the items to be seized.

Supporting affidavit must be incorporated explicitly into the warrant itself.

Front 12

Rule: Officer's Good Faith and Defective Warrants

Back 12

Good faith WILL SAVE a defective warrant.

EXCEPT:
so egregiously lacking in
1: probable cause
2: particularity
that NO reasonable officer would have relied on it.

3: officer or DA LIED or MISLED the magistrate
4: magistrate was BIASED and WHOLLY ABANDONED NEUTRALITY

Front 13

NYS Distingtion: Good Faith and Defective Warrants

Back 13

New York DOES NOT ALLOW good faith to save a defective warrant.

Front 14

Rule: Executing a Search Warrant

Back 14

1: did the officers exceed the search warrant (rooms not specified or containers too small)

2: did the officers comply with knock and announce rule.

Front 15

Rule: Knock and Announce

Back 15

Police Officers must knock and announce their presence and purpose before forcibly entering the place to be searched, unless:

1: Futile
2: Dangerous
3: Would Inhibit the Investigation

Front 16

Rule: Exceptions to Warrant Requirement (8)

Back 16

ESCAPIST

1: Exigent circumstances
2: Search Incident to Arrest
3: Consent
4: Automobile
5: Plain View
6: Inventory
7: Special Needs
8: Terry Stop and Frisk

Front 17

Warrant Exception: Exigent Circumstances

Back 17

1: evidence would dissipate or disappear in the time taken to get a warrant
2: hot pursuit

Front 18

Warrant Exception: Search Incident to Arrest

Back 18

1: arrest must be lawful
2: justified by officer safety
3: must be contemporaneous in time and place with the arrest
4: can search BODY/CLOTHING, within the span of arms
5: can search automobile passenger cabin, BUT NOT TRUNK

Front 19

Rule: Arizona v. Gant

Back 19

May search the car, even if the suspect was been handcuffed and placed in the squad car:

"provided there was reason to believe that the vehicle may contain evidence relating to the offense for which the arrest was made."

Front 20

NYS Distinction: Search Incident to Arrest

Back 20

Police MUST suspect arrestee is ARMED to search CONTAINERS within the WINGSPAN.

Front 21

NYS Distinction: Auto Searches Incident to Arrest

Back 21

Once the occupant is out of the car, CANNOT search containers or bags in the car for weapons or evidence of crime.

Front 22

Warrant Exception: Consent

Back 22

1: must be voluntary and intelligent (although police need not state that consent can be refused)
2: enough that the person had APPARENT AUTHORITY to authorize search
3: any party can authorize for jointly occupied premises
4: if co-tenants disagree, objecting party prevails as to areas over which they share dominion control

Front 23

Warrant Exception: Automobile

Back 23

NEED PROBABLE CAUSE to believe that contraband or evidence of crime will be found in the car.

Police can search CABIN AND TRUNK, and any container large enough to contain the items in questions.

Need probable cause before search, NOT at the time of the stop.

Front 24

Warrant Exception: Plain View

Back 24

NEED ALL:
1: lawful access to the place from which the item can be seen
2: lawful access to the item itself
3: criminality of the item is apparent

Front 25

NYS Distinction: Plain View Seizures

Back 25

Plain view seizure of obscene material requires prior judicial authorization.

Front 26

Warrant Exception: Inventory Searches

Back 26

a: when arrestees are booked
b: when vehicles are impounded

Constitutional, so long as the regulations governing them are reasonable and search complies with them.

Front 27

Warrant Exception: Special Needs: Drug Testing

Back 27

1: Random Drug Testing
a) RR employees after impact accident
b) customs officials responsible for drug interdiction
c) children in extra-curricular activities

Front 28

Warrant Exception: Special Needs: Probationer's Homes

Back 28

Permitted when police have reason to believe that contraband is present.

Front 29

Warrant Exception: Special Needs: Government Employees

Back 29

Search of Desks is permitted for workplace related misconduct

Front 30

Warrant Exception: Special Needs: Students

Back 30

Search of students effects permissible to investigate violations of school rules.

Front 31

Warrant Exception: Special Needs: Border

Back 31

Routine searches of persons and effects are ok.

Front 32

Define: Terry Stop

Back 32

brief detention or seizure for the purpose of investigating suspicious conduct.

Front 33

Define: Terry Frisk

Back 33

pat down of the body and the outer clothing for weapons.

Front 34

Rule: Terry Stop and Frisks

Back 34

Permissible for REASONABLE SUSPICION

STOP requires specific and articulable facts informing officers belief that criminal activity is present

FRISK requires specific and articulable facts informing officers belief that suspect is armed and dangerous. (frisk is driven by officer safety)

Front 35

Rule: Terry Frisks and Seizures

Back 35

During a Terry Frisk:
1: may seize weapons
2: may seize contraband that can be recognized without manipulating it.

Front 36

NYS Distinction: Terry Frisks and Seizures

Back 36

Can only seize item if it feels like a weapon.

Front 37

When are you SEIZED for Fourth Amendment Purposes

Back 37

When based on the TOTALITY of the CIRCUMSTANCES, a reasonable person would not feel FREE TO LEAVE or to DECLINE the officers request to answer questions.

Look at:
1: officers weapons
2: tone and demeanor
3: was suspect told he could refuse

Individual being pursued is seized only if he
1: stops
2: is physically restrained.

Front 38

NYS Distinction: Fourth Amendment Seizure

Back 38

Police Pursuit IS SEIZURE

Front 39

Rule: Seizure during traffic stop

Back 39

Driver and all passengers are seized. ALL have the authority to challenge the legality of the stop.

Front 40

Basic Rule: Exclusion of Unconstitutional Evidence

Back 40

Excluded from Prosecution's CASE IN CHIEF -- ONLY.

Can be introduced to impeach the defendant's testimony.

Exempt proceedings:
1: grand jury
2: civil
3: parole revocation

Front 41

Rule: Knock and Announce and Exclusion

Back 41

A failure to comply with the knock and announce rule does NOT require suppression of evidence subsequently discovered.

Front 42

Rule: Reasonable Mistakes and Exclusion

Back 42

Exclusionary rule does not apply to a evidence erroneously obtained by an officer when executing A SEARCH WARRANT, provided the mistake was REASONABLE.

Front 43

Define: Fruit of the Poisonous Tree

Back 43

Evidence derived from exploiting prior unconstitutional conduct.

INADMISSIBLE.

Front 44

Rule: How to Nullify Fruit of the Poisonous Tree

Back 44

Must show a BREAK in the causal link.

3 Doctrines:
1: independent source
2: inevitable discovery
3: attenuation--defendants free will was restored through passage of time and intervening events

Front 45

Basic Rule: Wiretapping and 4th Amendment

Back 45

Wiretapping is a search.

Front 46

Rule: Requirements for Wiretap Warrant

Back 46

Application must describe:
1: probably cause
2: persons to be overheard
3: conversations to be overheard
4: limited time period

Front 47

Rule: Eavesdropping and 4th Amendment

Back 47

If you speak with someone who has agreed to a wiretap or other monitoring, you have NO fourth amendment claim.

Assume risk that the other party will disclose.