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54 Cards in this Set
- Front
- Back
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What is the preliminary requirement for all the specifically established and well-delineated exceptions to the per se warrant rule?
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1) Pre-existing PC (for seizure or for where the officer is)
2) actual search or seizure of the person or thing |
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What is required for search incident to lawful arrest exception? What can be searched under SILA exception?
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1) lawful arrest based on PC
2) can search the person and the area within his immediate control (Wingspan) |
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What can be searched under SILA other than the wingspan area in a home?
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can search near and adjoining areas to arrestee - closets and other spaces an imminent attack could be launched from
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Can a police officer follow an arrestee into a dwelling under SILA?
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POs can follow arrestee into dwelling if under arrest to monitor movements (at the elbows)
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Under SILA, can you search the car of an arrestee?
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Only if the passenger is within reaching distance of the passenger compartment at the time of the arrest OR if it reasonable to believe that the vehicle contains evidence of the offense of the arrest (Gant)
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What is required for the exigent circumstances warrant exception to apply?
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1) PC to search
2) some exigency or need to act without a warrant that exists at the time of the search |
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What are the exigency situations?
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1) Hot pursuit of fleeing felon
2) Imminent Destruction of Evidence 3) Need to prevent suspect's escape 4) need to prevent risk of harm or injury to others 5) emergency circumstances to render assistance |
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When can a vehicle be searched under the vehicle exception to the per se warrant rule?
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Autos may be searched without a warrant if there is PC to believe, at the time of the search, that the contents of the auto offend the law.
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Is there a personal reasonable expectation of privacy in a vehicle?
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Yes, it is just a diminished PREOP expectation because of regulations required for traveling on the public highways
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What must the car be able to do to qualify for the vehicle exception?
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The car must be moveable
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What are the factors to see if a mobile home can qualify under the vehicle exception?
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1) location of the motor home;
2) whether the motor home is readily mobile vs. up on blocks; 3) if it is licensed 4) is the motor home connected to utilities 5) has convenient access to a public road |
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When does the search of the car have to happen immediately? In what situations can the car be searched later?
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1) for SILA must happen immediately
2) for vehicle and inventory, can happen at the station house |
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Does the vehicle exception apply to all vehicles regardless of where they are located?
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No, doesn't apply to vehicles parked on OWN private property, but if parked in a 3rd party driveway or public property - okay
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What is the general rule for the searching of containers/luggage in the vehicle exception?
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POs can search anything that is capable of holding the thing they have PC to search for
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Can the POs search the purse of the driver or passenger if the person keeps it on their person?
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No, there are no body searches authorized by the vehicle exception
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Is police inventory of a vehicle always a search?
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No, if the police aren't looking for anything they are just inventorying the car
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What are the requirements for the inventory exception?
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must be a standard operating procedure with no discretion of officers
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Does the inventory exception include containers in vehicles?
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Yes, but the POs must have a policy about opening containers in vehicles in place
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Does the inventory exception to the per se warrant requirement include people?
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Yes, POs can inventory individuals and their possessions if they are in custody
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What is required to inventory a person in custody?
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1) lawful arrest
2) prospective incarceration 3) standard operating procedure |
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What is required for valid consent to a search?
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1) voluntariness
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What is the basic test for voluntariness of consent?
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totality of the circumstances test that there was no coercion or duress
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Do POs have to inform the person that they do not have to consent?
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No, but whether or not they told them can be considered in a 'totality of the circumstances' analysis
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What are the things to assess when deciding if the consent was voluntary for a search?
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1) police behavior
2) external circumstances affecting one's will 3) internal subjective vulnerability |
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When searching a house, who can give consent?
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1) the owner of the property
2) co-occupants to anywhere that is joint access |
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What happens if a person claims to be a co-occupant and gives consent?
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Its okay under apparent authority - if they appear to have authority
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If a driver gives consent to search a car, can POs search the purses of the passengers?
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No, the driver cannot consent to the search of other people's belongings
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What are the basic requirements for the plain view doctrine to apply?
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1) a lawful presence by the police in the place where the item is seized
2) the item must have an immediate, apparent incriminating character; 3) the item must be in plain view; 4) police officers must a lawful right to access the object |
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What are things that are seizable under the plain view doctrine?
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fruits, instrumentalities, evidence of crime, weapons, contraband, and persons
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What must be satisfied for a Terry stop to be reasonable under the 4th amendment?
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1) criminal activity
2) armed and presently dangerous 3) PO must identify himself as a policeman and make reasonable inquiries 4) nothing to dispel fear before search |
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What constitutes criminal activity for a Terry Stop?
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Unusual conduct which reasonably and articulably leads PO to believe that criminal activity may be afoot
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Is armed and dangerous always required for a Terry Stop now?
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Not for a stop, but maybe for a frisk
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What may an officer do for the frisk?
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May do a limited search of outer clothing - pat down - to search for weapons
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Does refusal to cooperate create reasonable suspicion?
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No, it does not.
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In what kinds of frisks are the Terry balancing factors used?
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1) stops and frisks of person;
2) stops and frisks of cars and drivers 3) frisks of houses; 4) detention for questioning by POs 5) border entries 6) children in school 7) drug carriers/traffickers 8) public employees in their workplace 9) operators of public transportation mechanisms |
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What can be done by POs during a Terry Stop at an airport?
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1) can ask for ticket and license
2) cannot move person to another room |
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Are detentions permissible under Terry? What are the factors to see if a stop is a detention?
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No, detentions are not allowed.
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When is a subject seized?
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when his freedom of movement is restrained
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What actions by the police make a person seized?
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1) a person is seized when the officer physically touches the suspect OR
2) makes a show of authority that would make a reasonable person not feel free to leave AND the person submits to that authority |
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What are some factors to consider whether a stop is a seizure or not?
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1) where the encounter takes place
2) whether the police made intimidating movements or showed weapons 3) whether the questions were in a polite voice 4) whether the officers gave reason to believe people couldn't answer or couldn't leave |
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What is the showing needed for veracity of anonymous tips?
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1) basis for knowledge
2) veracity/reliability of the informant ** independent corroboration by officers can furnish evidence of reliability or veracity, the less reliable the information, the more detail is needed |
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What is allowable for detention of luggage under Terry?
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Can detain if there is reasonable suspicion and detention is limited is scope - a 90 minute hold to wait for a drug dog is unreasonable
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What are the things to look at for reasonableness of the scope of a Terry stop?
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1) was the stop justified at its inception?
2) where the actions reasonably related in scope to the circumstances which justified the stop in the first place? |
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What is a reasonable duration of a Terry Stop?
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1) must be temporary and last not longer than necessary to effectuate the purpose of the stop;
2) no rigid time limit Examples: 20 minutes is not necessarily too long 16 hours is not too long if the defendant contributes to the length of the detention |
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What is the permissible scope of Terry frisks of cars?
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1) can frisk passenger compartment of an automobile if RS that it is dangerous and suspect will have control of the contents again;
2) search limited to where a weapon may be placed or hidden; 3) the trunk is off limits |
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can a PO order driver and passengers of a vehicle?
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POs can routinely order people out of their vehicles at stops, both drivers and passengers
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what is the plain feel doctrine prevent?
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cannot squeeze a bag in a pocket to determine its contents; not allowed to do a further search than what is readily apparent from initial frisk
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When can a PO seize an item during a stop and frisk?
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Can seize an item if the item's character is immediately apparent
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Can a PO frisk the area around the person who is being stopped?
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Yes, to search for dangers - not a full search - just looking for imminent attackers
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When is a school search justifiable under Terry?
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1) a search of a student by a teacher or other official is justified when there are reasonable grounds for suspecting the search will turn up evidence that the student violated the law or rules of the school;
2) no official searches by police officers; 3) no strip searches |
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what is the balancing test for a checkpoint stop?
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1) gravity of the public concerns served by the seizure
2) the degree to which the seizure advances the public interest 3) the severity of the interference with individual liberty |
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What can POs do in border searches?
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can conduct suspicion-less searches all they want, including disassembling car
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Use of deadly force - when is it permissible?
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1) When a suspect threatens the officer with a weapon OR
2) if there is PC to believe suspect has committed a crime involving threatened or actual serious physical harm, deadly force may be used to prevent escape |
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when can deadly force not be used?
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1) when a suspect poses no immediate threat to the officer or others the harm resulting from failing to apprehend him does not justify the use of deadly force to do so; can't shoot someone to prevent them from fleeing in this situation - it is an impermissible seizure.
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