Crim Pro

Front 1

4th A. Search and Seizure
1) Is there gov’t conduct?

Back 1

Publicly paid cop (on or off duty) OR private citizens but only if acting at cop’s direction OR privately paid police but only if deputized w/ power to arrest

Front 2

4th A. Search and Seizure
2) did search or seizure invade individual’s reasonable expectation of privacy?

Back 2

Protected areas: persons, houses (including hotel rooms), papers, effects, curtilage (area of domestic use surrounding house)
Unprotected areas: paint on outside of car, account records held by bank, airspace while flying in public, garbage at curb, voice, odors from car or luggage, handwriting style, open fields (anything that can be seen across open fields)
Who has standing to challenge: always - owners or residents of premises searched; overnight guests in premises searched have authority as to areas where guests can be expected to access; never – individuals using someone else’s residence solely for business purposes; owners of property searched, only if owner has reasonable expectation of privacy in the area from which the property was seized; passengers in cars: only if passenger has reasonable expectation of privacy in the item searched or seized (NY: passengers can challenge a possession of weapons charge, if charge based solely on presumption of possession attributed to all passengers when weapon is found in car.

Front 3

4th A. Search and Seizure
3) was search authorized by a facially valid warrant?

Back 3

Protected areas: persons, houses (including hotel rooms), papers, effects, curtilage (area of domestic use surrounding house)
Unprotected areas: paint on outside of car, account records held by bank, airspace while flying in public, garbage at curb, voice, odors from car or luggage, handwriting style, open fields (anything that can be seen across open fields)
Who has standing to challenge: always - owners or residents of premises searched; overnight guests in premises searched have authority as to areas where guests can be expected to access; never – individuals using someone else’s residence solely for business purposes; owners of property searched, only if owner has reasonable expectation of privacy in the area from which the property was seized; passengers in cars: only if passenger has reasonable expectation of privacy in the item searched or seized (NY: passengers can challenge a possession of weapons charge, if charge based solely on presumption of possession attributed to all passengers when weapon is found in car.
2 requirements:
• PROBABLE CAUSE: fair probability that E of crime will be found in area searched (via preponderance of the evidence)
o Hearsay admissible
o Use of Affidavit: search warrant based on affidavit will be held invalid if the D establishes ALL 3: (i) false statement, (ii) affiant intentionally or recklessly included the false statement, and (iii) false statement was material to the finding of probable cause.
o Use of informant tips: OK, even if information is anonymous.
 Sufficiency - corroboration of enough of the tipster info to allow judge to make “common sense practical determination” that probable cause exists.
o NY: More Stringent—Application for warrant must demonstrate both (1) the veracity or reliability of source AND (2) the basis for the information’s knowledge.
 If no basis known, OK only if police observation confirms sufficient details suggestive of or directly related to criminal activity in question.
• PARTICULARITY: warrant must specify (1) place to be searched AND (2) items to be seized.
• If particularized description is contained in an affidavit supporting the warrant, affidavit must be incorporated explicitly into warrant itself.

Front 4

4th A. Search and Seizure
4) does an officer’s “good faith” save the defective search warrant?

Back 4

YES, evidence obtained by police in reasonable reliance on a facially valid search warrant; but with 4 EXCEPTIONS: (NOT IN NY)
• Affidavit supporting the application is so egregiously lacking in probable cause
• Application is so egregiously lacking in particularity
• Officer or DA lied to or misled the judge issuing warrant
• Issuing judge was biased (wholly abandoned neutrality)

Front 5

4th A. Search and Seizure
5) was search warrant properly executed by police?

Back 5

• DID THE OFFICERS EXCEED THE SCOPE OF THE WARRANT:
o Areas: rooms not listed in warrant
o Items: containers too small to hold item listed
• DID THE POLICE COMPLY WITH THE “KNOCK AND ANNOUNCE” RULE:
o Requires “knock and announce” their presence AND purpose before forcibly entering place to be searched, UNLESS officer reasonably believes that doing so would be futile, dangerous, or inhibit investigation.

Front 6

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? (ESCAPIST)

Back 6

- exigent circumstances
- search incidental to arrest
- consent
- automobile
- plain view
- inventory searches
- special needs
- Terry stop and frisk

Front 7

4th A. Search and Seizure
7) Can P use evidence gathered in an unconstitutional search and seizure against D in court?

Back 7

• EXCLUSIONARY RULE:
o Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision, is inadmissible in court against the individual whose rights were violated.
• LIMITS ON EXCLUSIONARY RULE:
o Case-in-chief v. cross-examination:
 Evidence is excluded ONLY from P’s case in chief BUT may be used to impeach D’s testimony on CX.
o Certain proceedings exempted:
 Grand jury proceedings
 Civil proceedings
 Parole revocation hearings
o “Knock and announce” violations:
 Failure to comply DOES NOT require suppression of evidence subsequently discovered
o Officer’s reasonable mistakes:
 DOES NOT apply to evidence erroneously obtained by officer when executing search warrant provided mistake was reasonable.

Front 8

4th A. Search and Seizure
8) is any evidence introduced by P “fruit of the poisonous tree” and if so, is the evidence admissible?

Back 8

• FRUIT OF THE POISONOUS TREE:
o Evidence derived from exploiting prior unconstitutional conduct and inadmissible in P’s case in chief.
• PROSECUTION CAN NULLIFY: by showing break in causal link between original illegality AND criminal evidence that is later discovered.
o Three doctrines nullify this by breaking this causal connection:
 “Independent Source”: source for discovery/seizure of evidence that is distinct from original illegality
 “Inevitable Discovery”: evidence would eventually be obtained by police lawfully.
 “Attenuation”: D’s free will has been restored through passage of time AND intervening events.

Front 9

wiretapping

Back 9

o Warrant required under 4th amendment
o Four requirements for wiretap warrant:
 Probable cause
 Person—must name persons expected to be overheard
 Conversations—describe conversations to be overheard
 Time—must be for strictly limited time period
o NY: “eavesdropping” includes both “bugging” and “wiretapping”—evidence is inadmissible except in a civil or criminal proceeding against the eavesdropper
 BUT any person can record his OWN conversation or allow 3rd persons to record, even w/o notice to other party

Front 10

Eavesdropping

Back 10

“Unreliable Ear”/Assumption of Risk:
 If you speak to other person wearing wire or recording device, you assume risk that the other person will not keep conversation private

Front 11

Law of Arrest

Back 11

• WHAT CONSTITUTES SEIZURE:
o When a reasonable person would believe that he is not free to leave or terminate an encounter w/ the govt.
o NY: police pursuit is seizure
• WHEN ARREST OCCURS:
o When police takes person into custody against his will for interrogation or prosecution
• STANDARD OF PROOF: probable cause
• 4TH AMENDMENT PERMITS ARREST FOR:
o ANY offense, even if punishable by monetary fine only
• DE FACTO ARRESTS:
o When police compels individual to come to station house for questioning or for fingerprinting
• ARREST WARRANT:
o No warrant to arrest in PUBLIC place
 NY: police may arrest w/o warrant when he reasonably believes that a felony or misdemeanor has been committed by the offender, whether in the officer’s presence or otherwise
 Private person can arrest w/o warrant when:
 Felony has been committed by offender in the presence of the arresting private person
o Absent emergency, need warrant to arrest someone in their home
• ARREST IN HOME OF 3RD PARTY:
o Need arrest warrant AND search warrant
• “COMMON ENTERPRISE” THEORY:
o In a traffic stop, where officer discovers evidence of crime that suggests a common unlawful enterprise between the driver/passengers, officer may arrest any OR all of them based on the reasonable inference of shared dominion or control over contraband.

Front 12

Confessions

Back 12

• THREE FEDERAL CONSTITUTIONAL CHALLENGES TO EXCLUDE CONFESSION:
o Due process claim of 14th Amendment
o 6th Amendment Right to Counsel
o 5th Amendment Miranda Doctrine
o NY: D can challenge confession under Indelible Right to Counsel which derives from 6th Amendment of NY Constitution.

Front 13

Confessions - excluding under 14th A. DP

Back 13

o Confession was involuntary (product of police coercion that overbears suspect’s will)
o NY: Arthur-Hobson Rule: length of interrogation and custody are factors in determining voluntariness of confessions

Front 14

Confessions - excluding under 6th A. right to counsel

Back 14

o Express constitutional guarantee
o Attaches when D is formally charged, NOT upon arrest (but has 5th Amendment Miranda upon arrest)
o Offense specific: applies only to the charges filed against you
 NO protection for interrogation for other uncharged criminal activity—different if each requires proof of an additional element that the other crime does not
 NY: if D is released and later arrested on unrelated charges, waiver can be made w/o presence of counsel from prior charges

Front 15

Confessions - excluding under NY indelible right to counsel

Back 15

o Greater protection than 6th Amendment—Attaches at:
 formal charging (same as 6th);
 where there has been significant judicial activity before filing of an accusatory instrument such that a D may benefit from presence of counsel
 arraignment
 upon filing of accusatory instrument
 when D is in custody, the police are engaging in activity overwhelming to the layperson, and D requests counsel
o Parent can invoke right on child’s behalf, but invocation must be unequivocal.
o If D is taken into custody for questioning on a charge AND police are aware that he is represented by counsel on that charge, CAN NOT question him about that charge OR any other matter without his attorney present.
 Knowledge that D is represented by counsel: actual knowledge not required; as long as they could have known (e.g. in the record)
 BUT if D released and taken into questioning on unrelated charges, the indelible right to counsel does not automatically attach to subsequent charge; waiver can be made w/o counsel from prior charges.
o Lineups: no right at lineup held prior to formal prosecutorial action except when:
 Police are aware that D is represented by counsel on another charge; AND
 D explicitly requests his attorney
 àpolice must notify counsel + provide opportunity for counsel to appear before proceeding. If counsel tells police of intent to appear at lineup, counsel must be given reasonable opportunity to attend
o Waiver of right: if D is represented by counsel, must take place in attorney’s presence.

Front 16

Confessions - excluding under 5th A. Miranda doctrine

Back 16

o Implied right grounded in self-incrimination clause of 5th A.
 Greater discretion by SC
o Core Miranda warnings:
 Right to remain silent
 Anything you say can and will be used against you in a court of law
 Right to an attorney
 If you can’t afford one, you have right to have attorney appointed for you
o When are Miranda warnings necessary: 2 core requirements
 1. Custody:
 If atmosphere is characterized by police domination and coercion such that his freedom of action is limited in a significant way.
 2. Interrogation:
 Any conduct police knew or should have known was likely to elicit an incriminating response
• DOES NOT APPLY to spontaneous statements since not product of interrogation
• NY: spontaneous statements made by D w/o any inducement, provocation or encouragement by police may properly be admitted, even if the statement was made in the absence of counsel—need to be “forced” upon the officer
 PUBLIC SAFETY EXCEPTION:
 If custodial interrogation is prompted by immediate concern for public safety, Miranda is unnecessary and any incriminating statements are admissible
 NY: when police are searching for disappeared person, the continued questioning of the suspected kidnapper need not terminate although the right to counsel has attached
o Valid Miranda waiver:
 Two core requirements:
 1. Knowing and intelligent:
• If suspect understands the nature of his rights/consequences of abandoning them
o Lie by police to attorney is fine
 2. Voluntary:
• If not the product of police coercion
 NY: parent/child rule: if police use deception or concealment to keep parent away from child being interrogated, the child’s waiver may be deemed invalid.
 Burden of proof:
 P bears burden by a preponderance of the evidence in proving a valid waiver of suspect’s Miranda rights.
• SILENCE or SHOULDER SHRUG probably sufficient to satisfy
o Asserting Miranda rights:
 When suspect invokes right to remain silent: police need to “scrupulously honor” the early request
 BUT police can later question as to a different (or the same) crime if done after a break and after a set of fresh warnings
 Once a suspect requests counsel:
 All interrogation must stop UNLESS initiated by suspect or unless suspect waives his right
 Request must be sufficiently clear that reasonable cop would understand it
 Expires 14 days after suspect is released from custody
 Allowing counsel to meet D but resuming questioning after counsel has left: NO, unless D waives
 NOT offense specific:
 Unlike 6th amendment, 5th is not offense specific—ALL interrogation must stop as to ALL topics outside presence of suspect’s attorney
o Limitations on evidentiary exclusion as applied to Miranda violations:
 Inadmissible in prosecutor’s case-in chief BUT may be used to impeach D’s testimony on cross BUT NOT testimony of 3rd party witnesses
 Physical Fruits:
 failure to give warnings does not require suppression of unwaived but voluntary statements
 If initial statement is inadmissible due to Miranda violation, subsequent statements ADMISSIBLE if made after Miranda waiver PROVIDED the initial Miranda violation was not obtained through the use of inherently coercive police tactics offensive to due process
 Rejects “cat out of the bag” theory
 Testimonial evidence that should have been excluded by Miranda was improperly admitted at trial and D convicted:
 Harmless error test: Guilty verdict will stand if govt. can prove, beyond a reasonable doubt, that the error was harmless b/c D would have been convicted without the tainted evidence.
• Same as improperly admitted physical evidence
• BUT denial of right to counsel is NEVER harmless

Front 17

Pretrial ID

Back 17

• THREE TYPES OF IDENTIFICATIONS:
o Lineups: ID perpetrator from group
o Show ups: one-on-one confrontation between witness and suspect
o Photo arrays: witness asked to pick from series of photos
• 2 SUBSTANTIVE CHALLENGES TO PRETRIAL IDENTIFICATIONS:
o 1. RIGHT TO COUNSEL:
 5th A: NO 5th A. right to counsel under Miranda for pretrial identification procedures, i.e. can’t refuse to participate in a lineup
 6th A: Right at lineups and showups that take place after formal charging; NO right at photo arrays.
 NY: greater protection for suspects: right to have attorney present at a lineup conducted before the filing of formal charges if police aware D has counsel AND D requests that counsel be present.
o 2. DUE PROCESS STANDARD:
 Violates 14th Amendment DP clause when it is so unnecessarily suggestive that there is a substantial likelihood of misidentification.
• REMEDIAL CONSIDERATIONS:
o Remedy for constitutional violations in pretrial ID: exclusion of witness’ in-court identification
o Even if violation, in-court identification will still be allowed if the P can prove that it is based on observation of suspect other than unconstitutional showup, lineup, or photo array.
o To make this showing, P can point to factors such as: witness’ opportunity to view D; the certainty of the identification; specificity of the description provided to the police

Front 18

Grand Juries

Back 18

• Issue indictments:
o NY: indictments MUST (i) establish all elements of the crime; AND (ii) is legally sufficient to establish that the accused committed the offense; AND (iii)provide reasonable cause to believe that the accused committed the crime in question.
o If grand jury does not indict: D must be released if being held and matter may not be resubmitted to another grand jury unless the court allows resubmission
• Proceedings secret: D does not have right to notice or access
• Witnesses subpoenaed to testify have NO right to counsel or Miranda Warnings
o NY: witness who testifies in a grand jury proceeding automatically receives transactional immunity unless he has waived immunity or volunteers info not responsive to any inquiry
• NO right to have evidence excluded even if inadmissible at trial
• Witnesses MUST appear if called, although he can refuse to answer specific questions on the ground that they may incriminate him
• States not required to use grand juries as part of charging process
• Exclusion of minorities: conviction resulting from an indictment issued by a grand jury from which minorities have been excluded will be reversed w/o regard to the harmlessness of error

Front 19

Pretrial Detention

Back 19

• Standard: probable cause both to bind the D over for trial and to detain him in jail before trial.
• Hearing to determine probable cause (Gerstein hearing) is unnecessary to justify pretrial detention if:
o Grand jury has issued an indictment OR
o Magistrate has issued a warrant
• First appearance: soon after arrest, D must be brought before a magistrate who will advise him of his rights, set bail, and appoint counsel if necessary.
• Bail decisions immediately appealable
o NO due process violation for denial of bail unless state provides for bail and denial of bail was arbitrary—detainees must be given the opportunity to prove eligibility

Front 20

Trial Rights

Back 20

• P must disclose all material exculpatory evidence to D:
o Failure to do so violates due process clause and is grounds for reversal of conviction if D can prove (i) evidence was favorable b/c it either impeaches or is exculpatory AND (ii) prejudice has resulted
o NY: D must notify P w/in 30 days from a not-guilty plea if raising insanity as a defense. W/in 20 days after arraignment, P may serve the D w/ demand for the alibi defense, and D must reply w/in 8 days
• Unbiased judge: judge has no financial stake in the outcome of the case AND no actual malice towards D
• Right to jury trial: maximum authorized sentence exceeds 6 months
o NY: D can waive right to jury trial (EXCEPT Murder-1) if waiver is written, signed in open court, in the presence of judge, and w/ judge’s approval.
• Speedy trial:
o Attaches ONLY when D has been arrested or charged
o Determined by totality of the circumstances; remedy for violation is dismissal w/ prejudice
 NY: If P is not ready for trial, D entitled to release from custody or dismissal of the charge, depending on amount of delay. 2 exceptions: homicide or sudden unavailability of material evidence; Felony—6 months; A misdemeanor—90 days; B misdemeanor—60 days; Violation—30 days
• Fewest number of jurors allowed in a criminal trial: 6
o NY: D can waive the 12-person requirement and proceed to verdict with only 11 jurors.
• Verdicts not required to be unanimous; ONLY required if 6 jurors used
• “Cross-sectional” requirement: that pool from which jury is drawn must represent a cross-section of the community.
• Preemptory challenges: cannot be used to exclude for race or gender
• D’s right to confront adverse witnesses does not apply where face-to-face confrontation would contravene important public policy concerns.
o i.e. traumatizing child witness
• Right to counsel: available only in misdemeanor cases only if imprisonment is ACTUALLY imposed; if receive no prison timeàright has not been violated
• Right to effective assistance of counsel:
o strict test—unless there is a colorable argument that D was not guilty, always deny relief.
 Counsel’s performance was deficient; AND
 But for the deficiency, the outcome would have been different
 NY: reversal of a guilty verdict not required when one (but not both) of the two attorneys was later found to be unlicensed. GREATER protection to ATTORNEYS than the federal test

Front 21

Guilty Pleas and Plea Bargaining

Back 21

• Four requirements of plea-taking colloquy that the judge must address to the D on the record:
o Nature of the charge
o Maximum authorized sentence and any mandatory minimum
o D’s right to plead not guilty and proceed to trial
o Consequences of the plea: by pleading guilty, D is waiving trial and will proceed directly to sentencing
• D may withdraw a guilty plea after sentencing if:
o Problem with plea taking colloquy
o Jurisdictional defect
o D prevails on ineffective assistance of counsel claim
o P fails to fulfill his part of the bargain (e.g., not making sentencing recommendation to judge)

Front 22

Punishment

Back 22

• 8th Amendment prohibits penalties that are grossly disproportionate to the seriousness of the offense committed.
• Statute that created an automatic category for the imposition of the death penalty violates 8th Amendment.
• Jurors must be allowed to consider all potentially mitigating evidence in deciding whether to impose death penalty
• 8th Amendment prohibits the imposition of death penalty for:
o D mentally retarded
o D presently insane
o D under 18 at the time offense occurred

Front 23

Double Jeopardy - when jeopardy attaches

Back 23

o Jury trial: when jury is sworn
o Bench trial: when first witness is sworn
o Guilty plea: when court accepts D’s plea unconditionally

Front 24

Double Jeopardy - same offense requirement

Back 24

o Two offenses not same offense if each has an element that the other does not.
 NY: transaction test, which requires that D be charged with all offenses arising from any single transaction unless:
 The offenses have substantially different elements; OR
 Each offense contains a single element not in the other AND they vindicate different harms; OR
 One is for criminal possession and the other, use; OR
 Each offense involved harm to a different victim; OR
 One offense if NY RICO and other if Federal RICO
o Greater and Lesser-Included offenses: if only one offense has an element not contained in the other
 Prosecution for lesser included offense precludes later prosecution for the greater offense
 Prosecution for greater offense likewise precludes later prosecution for lesser included offense

Front 25

Double Jeopardy - same sovereign requirement

Back 25

bars retrial for the same offense by the same sovereign ONLY
o State and federal government: NOT same
o Different states: NOT same
o States and municipalities within them: same

Front 26

Double Jeopardy - 4 exceptions

Back 26

• 4 exceptions to double jeopardy to permit retrial:
o hung jury
o mistrial for manifest necessity (i.e. ill D)
o retrial after successful appeal (unless based on lack of sufficient P evidence)
o breach of plea bargain by D
o NY: when (i) court lacked jurisdiction over the D or the offense or (ii) when prosecution was for a lesser offense that could have been charged under the facts of the case and the prosecution was procured by the D for the purpose of avoiding prosecution for a greater offense

Front 27

5th A. Privilege Against Compelled Testimony

Back 27

• Who may assert:
o ANY natural persons, but not corps. or partnerships
• When to assert:
o ANY PROCEEDING where the person testifies under oath
 MUST be asserted at the FIRST opportunity or it is forever lost
 NY: privilege cannot be asserted in a grand jury proceeding.
• To what does the privilege apply and not apply:
o Testimonial ONLY, NOT physical or real evidence
 Only compelled testimony; NOT voluntary testimony
o OK: Compulsory production of documents via subpoena
o OK: Seizure of incriminating documents
o OK: lineup or other identification evidence (even if D is forced to say certain words b/c it is for purpose of ID not testimony)
 NY: photographs of tattoos on D’s body as evidence for committing a hate crime OK
• Prosecutors CAN NOT comment on its assertion
• Three ways to eliminate the privilege:
o Prosecutorial grant of “use and derivative use” immunity: Prosecutor can’t use your testimony of anything derived from it to convict you.
 NY: transactional immunity: BROADER shield witnesses from prosecution for any transaction they testified about in the immunized testimony
o D taking the stand: by taking stand, D waives as to anything properly within scope of C-X
o Statute of limitations: privilege is unavailable if the SOL has run on the underlying crime since a witness testimony could not expose him to criminal prosecution.

Front 28

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - evanescent E

Back 28

• EXIGENT CIRCUMSTANCES:
o Evanescent evidence:
 Evidence that would dissipate or disappear by time warrant is issued (i.e. B.A.C.)
 NY: NY Vehicle and Traffic Law states that any person who operates a car in NY shall be deemed to have given consent to such test, even though C/L exception does not exist.
o Hot pursuit of fleeing felon:
 Allows police to enter suspect’s home or 3rd party home into which suspect has fled to.
 During hot pursuit, E of crime discovered in plain view while searching for suspect is admissible.
o NY emergency exception: OK if:
 Police must have reasonable grounds to believe that there is emergency at hand and immediate need for assistance to protect life or property;
 Search must NOT be primarily motivated by intent to arrest and seize evidence; AND
 Some reasonable basis (like probable cause) to associate emergency w/ area to be searched.

Front 29

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - search incidental to arrest

Back 29

• SEARCH INCIDENTAL TO ARREST:
o Arrest must be lawful
o Justifications:
 (1) officer security OR
 (2) need to preserve evidence
o Timing:
 contemporaneous in time and place with arrest
o Geographic scope:
 “wingspan”—clothing, pockets, containers, effects within wingspan
 NY: to search containers within wingspan, police must suspect that the arrestee is armed.
o For automobiles searched incident to arrest:
 Permissible scope:
 interior of car, including closed containers, but NO TRUNK.
 Location of suspect: can police search car after arrestee has been handcuffed + placed in police car?
 NEW/NY: (1) Yes, provided that there was reason to believe that vehicle may contain evidence relating to offense or which the arrest was made; (2) automobile searches of unsecured arrestees are permissible, since such individuals may gain access to weapons or evidence inside the vehicle.
• NY: once the occupant is out of the car, police cannot search closed containers or bags to look for weapons or evidence of crime.

Front 30

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - consent

Back 30

• CONSENT:
o Standard: consent must be voluntary and intelligent.
 If police do not tell someone that he has right to refuse consent DOES NOT make consent invalid.
o Apparent authority:
 If consent obtained from someone who lacks authority to grant it, consent OK if officer reasonably believed that the consenting party had actual authority.
o Shared premises:
 Either party can give consent
o Disagreeing co-tenants:
 Objecting party prevails as to areas they share dominion and control.

Front 31

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - automobile

Back 31

• AUTOMOBILE: (can use others, i.e. consent in cases of cars)
o Standard:
 Probable cause to believe that contraband or evidence of crime will be found in car.
o Where can officers search:
 Passenger cabin and TRUNK, and may open any package, luggage, or other container that may reasonably contain items for which there was probable cause—almost everywhere for drugs
 c.f.: no trunk in “search incident to arrest”
o Traffic stop:
 NO probable cause needed at time car is pulled over, but needed before initiating search
 NY: police can stop car for inspection if there is reason to believe that there is a traffic violation based on their observation. Also OK if done at roadblock and all cars are stopped in a uniform and nondiscriminatory manner.

Front 32

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - plain view

Back 32

• PLAIN VIEW: 3 requirements:
o Lawful access to the place from which the item can be plainly seen
o Lawful access to the item itself
o Criminality of item must be immediately apparent (probable cause)
 NY: plain view seizure of obscene material requires prior judicial authorization.

Front 33

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - inventory searches

Back 33

• INVENTORY SEARCHES:
o 2 contexts where inventory searches most commonly occur:
 arrestees are booked into jail
 vehicles are impounded
o Standard: constitutional if:
 (1) regulations governing them are reasonable in scope AND
 (2) search itself complies with those regulations

Front 34

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - special needs

Back 34

• SPECIAL NEEDS: of law enforcement, government employers, school:
o Random drug testing: OK in contexts including:
 Railroad employees following impact accident
 Customs officials responsible for drug interdiction
 Public schoolchildren participating in extracurricular activities
o Probationer’s homes:
 OK where police have reason to believe that contraband is present or if there is a statute authorizing the search even w/o reasonable grounds
 NY: parolee’s rights not violated if parole officer makes warrantless search of parolee’s home, provided officer’s conduct is rationally/reasonably related to performance of his duty as parole officer
o Government employee’s desks and files:
 OK to investigate work-related misconduct
o Student’s effects in public schools:
 OK to investigate violation of school rules
o No 4th Amendment rights at the border with respect to routine searches of persons and effects

Front 35

4th A. Search and Seizure
6) is search valid under any of the 8 exceptions to the warrant requirement? - Terry stop and frisk

Back 35

• TERRY STOP AND FRISKS:
o Stop: brief detention or seizure to investigate suspicious conduct
o Frisk: pat-down of body and outer clothing for weapons
o Evidentiary standard: reasonable suspicion (less than probable cause)
 Stops: requires articulable facts that inform officer’s beliefs that criminal activity is present
 NY: minimal intrusion/request for information: police can approach and request info except on “whim or caprice”. Individual’s right to respond and even run away does not give police probable cause to arrest.
 C/L right to inquire: police have founded suspicion that criminal activity is afoot—police can ask questions; detention must be short of seizure. If individuals give explanations, police must release.
 Frisks: specific and articulable facts that suggest a suspect is armed and dangerous
 Justified by concern for officer safety ONLY; not a general search for criminal evidence
o What can be seized:
 Frisk: can always seize a weapon, BUT can only seize contraband if officer does not manipulate the object (gun/crack)
 NY: seize item only if it feels like a weapon
o When are you seized:
 When based on the totality of the circumstances, a reasonable person would not feel free to leave, or to decline an officer’s request to answer questions.
 Seizure in public area based on:
 Whether officer brandishes a weapon
 Officer’s tone and demeanor during interaction
 Whether individual told that he has right to refuse consent
 Individual pursued by officer seized ONLY if he submits to the officer’s authority by stopping OR if officer physically restrains
 NY: police pursuit is a seizure in and of itself—must be based on reasonable suspicion that a crime has been, is being, or is about to be committed.
o Who is seized during a traffic stop:
 Both driver and passengers, and ALL have authority to challenge the legality of the stop.
 Drug sniffs: OK, if it does not prolong stop unreasonably