Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
97 Cards in this Set
- Front
- Back
|
When does the 4th Am apply?
|
1. Government Action and
2. Search or Seizure |
|
|
What does the 4th Am prohibit?
|
The 4th Am prohibits only unreasonable searches and seizures.
|
|
|
When is a search or seizure unreasonable?
|
A search or seizure conducted outside of the judicial process (i.e. without a warrant) is presumptively unreasonable.
|
|
|
What is a "search"?
|
A search requiring a warrant occurs when there is 1. A subjective expectation of privacy that 2. the public accepts as objectively reasonable.
|
|
|
Open Fields Doctrine
|
A person may not legitimately expect privacy for activities conducted outside in open fields, unless it is the area immediately surrounding the home.
|
|
|
Making information Readily Available to the public
|
A person cannot legitimately expect privacy in information that he made readily available to the public.
|
|
|
Factors to identify curtilage or open fields
|
1. proximity to the home
2. whether the D did something to prevent it from being discovered 3. nature of the activity for which the land was used. 4. whether the area was within an enclosure surrounding the house. |
|
|
Seizure of property occurs when?
|
When there is an interference with a person's possessory interests in the property.
|
|
|
Seizure of a person occurs when?
|
When there is physical application of force or the person has submitted to authority
|
|
|
Standing Rule
|
As a general rule, before evidence may be excluded, the person seeking exclusion must have standing to bring the claim.
|
|
|
When does a person have standing?
|
A person has standing if they have a reasonable expectation of privacy.
|
|
|
Who carries the burden of establishing standing?
|
The movant must establish standing
|
|
|
Do Overnight guests have standing?
|
Yes; an overnight guest has a reasonable expectation of privacy. He has sought shelter in another's home, he is there with the permission of the host who shares his home and his expectation of privacy, the guest is not limited to a specific area.
|
|
|
Do social guests have standing?
|
Only social guests who have a substantial connection to the home have standing.
|
|
|
Standing to challenge search of a space
|
A person does not have standing to challenge the search of someone else's private space even if his belongings are there.
|
|
|
Simmons' Immunity
|
Simmons grants immunity for statements or other evidence introduced by a D in support of a pre trial motion to suppress or dismiss.
|
|
|
Components of a valid search warrant
|
1. Oath
2. Probable Cause 3. Particularity 4. Neutral Magistrate |
|
|
Staple Rule
|
A court may construe the warrant with reference to the accompanying application or affidavit if the supporting document uses appropriate words of incorporation and is attached to the warrant.
|
|
|
Neutral Magistrate
|
A neutral magistrate may not participate in executing the warrant.
A state attorney general may not issue a warrant. A magistrate may not accept a fee for issuing a warrant if he does not charge a fee for denying one. A magistrate cannot fail to read a warrant that he signs. |
|
|
Discretion of the officer executing the warrant
|
Nothing should be left to the discretion of the officer executing the warrant.
|
|
|
Magistrate's determination in issuing a warrant
|
The magistrate must determine whether there was a fair probability that the search will uncover evidence of wrongdoing.
|
|
|
Standard of Review when challenging probable cause.
|
Deferential Review. The magistrate must have had a substantial basis for concluding that the search would uncover evidence of wrongdoing.
|
|
|
Probable Cause for arrest warrants
|
Probable cause to believe the suspect committed a crime.
|
|
|
Probable Cause for Search
|
Sufficient facts that would lead a reasonable person to believe that seizable evidence of criminal wrongdoing or the felon will be present at the place or person to be searched.
|
|
|
STD for heightened privacy interests
|
If the circumstances involved in the search are of heightened privacy interest then probable cause does not justify the search. A greater standard is required.
|
|
|
Informant Privilege
|
A magistrate does not need to require disclosure of an informant when evaluating probable cause.
|
|
|
Probable Cause for Anticipatory Warrant.
|
Probable cause now to believe that seizable evidence will be located at the specific place or person to be searched when the warrant is executed.
|
|
|
Probable Cause for Conditional Anticipatory Warrant
|
1. If the triggering condition occurs there is PC to believe contraband or evidence will be found in the specific place
2. PC to believe the condition will occur. |
|
|
Affidavits based on hearsay are evaluated under what test:
|
Illinois v. Gates Totlity of the circumstances test. The informant must be credible and there must be sufficient information to establish the reliability of the information. However, an absence of one of the factors can be made up for by the presence of another.
|
|
|
Aguilar Spinelli Test
|
1. Informant must be credible. (cops can show this by corroborating details of the information through their police investigation)
2. There must be sufficient details and facts to show that the information is reliable. |
|
|
Arrests in the home
|
Absent an exception, an officer may not arrest a suspect in their home without an arrest warrant.
|
|
|
Arrests in public
|
An officer may arrest someone in public without a warrant if he has probable cause or if the person commits a misdemeanor in the officers presence.
|
|
|
Arrests in 3rd Party Residences
|
A search warrant is required to effectuate an arrest warrant in someone elses home.
|
|
|
Consequences of Arresting without a warrant.
|
There must be judicial evaluation of probable cause before the person is detained for an extended period of time.
They must provide this determination within 48 hours of the person's arrest. |
|
|
Executing An Arrest Warrant
|
An arrest will constitute an unreasonable seizure if the method of making the arrest was unreasonable.
|
|
|
Knock and Announce Rule
|
The knock and announce rule is implicit in the 4th Am requirement. An officer must knock and announce his presence before entering a home to execute a warrant.
|
|
|
Rationale for knock and announce rule
|
1. protects privacy
2. protect life and limb 3. give suspect opportunity to comply so that he avoids destruction of property |
|
|
How long does an officer have to wait before entering?
|
15-20 seconds is reasonable.
|
|
|
Exceptions to the knock and announce rule
|
1. Fleeing felon who escapes and retreats to the home.
2. Reasonable suspicion that complying would prevent procuring of evidence 3. Threat of physical violence. |
|
|
Remedy for violation of knock and announce
|
Not Suppression.
|
|
|
Exceptions for warrant requirement
|
1. exigency
2. search incident to arrest 3. plain view 4. special needs 5. stop and frisk 6. vehicles 7. consent |
|
|
Exigent Circumstances
|
Exigent circumstances justify an officer's search based on probable cause without a warrant or arrest without a warrant.
|
|
|
Exigent Circumstances Categories
|
1. hot pursuit
2. risk of danger 3. imminent destruction of evidence 4. prevent escape |
|
|
Under Exigent Circumstances you can seize
|
1. mere evidence
2. contraband 3. instrumentalities 4. fruits of the crime |
|
|
Limit on Exigencies
|
Once the exigency is over the officers must obtain a warrant
|
|
|
Hot Pursuit
|
Hot pursuit is justified on the basis that a fleeing felon, knowing he is pursued, is likely to destroy evidence or be a danger to the public.
In order for an officer to enter without a warrant it must be a serious offense. |
|
|
Community Caretaking Exigency
|
Requires:
1. PC that someone is injured and 2. PC that the injured might need help |
|
|
Murder Scene
|
There is no murder scene exception
|
|
|
Search Incident to Arrest
|
An officers search incident to arrest is justified if he lawfully arrested the person.
|
|
|
Limit on search incident to arrest
|
1. Limited to the lunge area
2. you can pat the person down 3. can only search for evidence & weapons |
|
|
Rationale for Search Incident to Arrest
|
Officer safety
limited privacy expectation after arrest |
|
|
Spacial Limitations on Search Incident to Arrest
|
1. Officer may search lunge area of the car
2. Anything on your person may be searched. 3. You can do a protective sweep of the house to search for other people 4. search is limited to the offense for which the suspect was arrested. |
|
|
Vehicles Scope
|
1. Can search anywhere in the car that they might lunge
2. Police may examine any contents of containers found in the car 3. May not search trunk or locked glove compartment |
|
|
Next to Vehicles
|
Cops can search the car as long as the suspect was a recent occupant of the car.
|
|
|
Pretextual Stops and Searches
|
Custodial arrest is permitted as long as the officer could have lawfully stopped the individuals for the arguably pretextual offense.
|
|
|
EXC to Vehicles
|
limited to non-evidence gathering
|
|
|
Vehicles EXC GR
|
If police have PC to believe a car contains contraband they can stop the car and search without a warrant.
|
|
|
Vehicles Rationale
|
Cars are mobile and might leave
Cars have a lesser expectation of privacy than houses do. |
|
|
Search of Passenger Containers
|
Officer may lawfully search the containers of passengers in the car if he has PC to believe they contain contraband
|
|
|
Plain View
|
Officer can seize evidence of contraband in plain view if he has lawfully entered, searched or arrested the suspect.
|
|
|
Plain View Requirements
|
1. Original Intrusion must be lawful.
2. Item observed while officer is within the scope of the intrusion 3. Must be immediately apparent that the item is evidence of contraband. |
|
|
Consent
|
A person may waive the 4th Am privilege
|
|
|
Requirements for consent
|
1. Must be voluntary.
Look at nature of suspect and tactics used by officers. |
|
|
Consequences of consent
|
Officer may proceed as he wishes with the search without a warrant.
Officer is restrained by the scope of the consent. |
|
|
Co-Occupant Consent
|
A co-occupant of the premises may consent if he can lawfully enter the promises.
Co-Occupant Denial prevails. Officer may lawfully enter over a denial to provide protection |
|
|
Requirements for Co-occupant consent
|
1. Must be voluntary
2. Officer must reasonably believe that the person had the authority to consent. (i.e. whether the facts available to the officer at the time warrant a man of reasonable caution to believe the consenting party had authority) |
|
|
Special Needs Exception
|
1. admin search
2. schools 3. inventory 4. checkpoints 5. drug testing 6. border searches |
|
|
Administrative Searches
|
GR: Need a warrant to conduct admin searches in residences and commercial buildings for administrative code violations without a warrant unless there is an emergency or consent.
EXC: If it is a highly regulated industry there is no warrant requirement Rationale: Conducted for non-criminal purposes |
|
|
Inventory Searches
|
Inventory searches do not require a warrant or probable cause as long as they are conducted in compliance with standard procedures in the jurisdiction
|
|
|
Schools
|
School officials do not need a warrant to conduct searches as long as they have a 1. reasonable basis for the belief that the search will turn up evidence that the student is engaged in illegal activity or in violation of school rules and 2. the search is not excessively intrusive in light of the age, sex and infraction.
|
|
|
Border Searches
|
A person may be seized and her belongings searched at the border without a warrant and in the absence of any individualized suspicion of wrongdoing.
|
|
|
Fixed Checkpoints
|
Fixed Checkpoints do not require individualized suspicion of wrongdoing.
EXC: A checkpoint whose primary purpose is to detect evidence of wrondoing violates the 4th Am. |
|
|
Roving Border Patrols
|
Roving border patrols require reasonable suspicion of wrongdoing.
|
|
|
Drug Testing
|
Suspicionless drug testing is has been upheld in various circumstances.
Look at: nature and immediacy of the governments concern and the privacy interests of those tested. Test: Programatic Purpose |
|
|
Stop And Frisk
|
An officer may stop and frisk a person if he has reasonable suspicion:
1. Reasonable suspicion engaged in criminal activity. 2. Reasonable suspicion of weapons. |
|
|
Standard for challenging stop and frisk
|
whether a reasonable person would feel free to terminate the encounter
|
|
|
Limits to Stop and Frisk
|
1. Must be limited to non-evidence gathering
2. Must be limited to search for weapons |
|
|
Extensions of Stop and Frisk
|
1. Fleeing is reasonable suspicion to stop further
2. You can frisk a car 3. You can frisk a house. |
|
|
Refusing to answer questions
|
Refusal to give name is not probable cause to arrest, but if there is a state statute then you may arrest.
|
|
|
Test for Reasonable Suspicion
|
Whether the facts available to the officer at the time of the stop would warrant a man of reasonable caution in the belief that the action taken was appropriate.
|
|
|
Basis for reasonable suspicion
|
1. Informant's information
2. Anonymous informant if sufficiently corroborated Limit: Must be based on information about future behavior |
|
|
How long can you stop someone?
|
Officers must diligently work toward resolving their suspicion while the person is stopped.
20 min enough when suspect caused the delay and officers worked diligently to resolve the suspicion. 90 minutes is too long. |
|
|
What Can Cops Do?
|
1. Ask you questions directed toward resolving their suspicion
2. Ask your name 3. Order drivers out of the car 4. Order passengers out of the car |
|
|
3 types of encounters and the requirements that attach
|
1. Consensual--no reasonable suspicion
2. Stop & Frisk: Reasonable suspicion 3. De Facto Arrest: Probable Cause |
|
|
Exclusionary Remedy
|
Evidence obtained in violation of the 4th Am must be suppressed.
|
|
|
Rationale for Exclusionary Remedy
|
Deterrence
|
|
|
Exceptions to Exclusionary Remedy
|
1. impeachment
2. attenuated fruits 3. non-criminal cases 4. good faith 5. inevitable discovery 6. independent source |
|
|
Impeachment Exception
|
Evidence obtained in violation of 4th Am may be used to impeach the D's contradictory evidence at trial.
TEST: Cost / Benefit analysis The Deterrent benefit is outweighed by the need to prevent perjured testimony. |
|
|
Non-Criminal Cases
|
GR: Exlusionary Rule only applies in criminal trials. If it is not a criminal case and not the case in chief the Exclusionary rule will not apply.
The deterrent effect of the exclusionary remedy is outweighed by the cost of keeping relevant evidence from the court. |
|
|
earthquake (starts with s)
|
el sismo
|
|
|
Good Faith Exc
|
If officers relied in good faith on the warrant then it should not be excluded.
Test: Was the officer's reliance reasonable? (objectively reasonable) |
|
|
Good Faith EXC Limits
|
1. Officer cannot lie or act in reckless disregard for the truth in obtaining a warrant.
2. the magistrate must be neutral |
|
|
Attenuated Fruits Exc
|
GR: Secondary evidence discovered by exploiting the inital illegality must be supppressed. However, if the evidence was obtained by means sufficiently removed from the initial illegality it is admissible.
|
|
|
Factors Re Attenuation
|
1. how much time passed btwn initial illegality and secondary evidence
2. Presence or absence of free will resulting in the seizure 3. flagrancy of the initial misconduct 4. existence or absence of intervening causes |
|
|
Inevitable Discovery
|
If the evidence would have been discovered anyway then the evidence should be admissible.
There must be a basis in fact readily justifiable that discovery would have occurred. |
|
|
Independent Source
|
Evidence that was obtained by means other than exploiting the illegality will not be excluded.
|
|
|
Exclusionary Rule Applies Per Se if
|
1. Cops are deliberately, recklessly or grossly negligent.
2. systemic mistake |
