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79 Cards in this Set
- Front
- Back
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Pen register
F: pen register records #s and cops get names |
A: not search b/c this info is available to many at the phone company, so no reasonable expectation of privacy
Smith v. Maryland Δ argues: Do you expect someone to get the names that you are calling? Or just the billing information? |
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Phone Conversation
F: Δ was in a phone booth talking and cops recorded his conversation using a devise on the outside of the booth |
A: search b/c Δ had a rzble expectation of privacy that his phone conversation was private. It mattered what (private conversation) and not where (public phone booth).
Katz v. US |
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Travels/Tracking devises - beeper
Beeper in a can of chloroform but can outside of home |
not search b/c wouldn’t tell anything more than a visual tail would tell; no reasonable expectation of privacy on public roads
Δ argues: While you know that the public can watch you, do you really expect someone to tail you? Govt responds: How do you develop PC w/o tailing someone? US v. Knotts |
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Travels/Tracking devises
F: beeper used to see if can still in house |
A: search b/c could tell if can moved from room to room and there is a reasonable expectation of privacy in your home.
US v. Karo |
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Dog Sniff/ Lack of intrusiveness
F: dog sniffed a piece of luggage for drugs |
: not search b/c dog can only sniff one thing and there is no reasonable expectation of privacy to have drugs (b/c illegal); dog doesn’t intrude on privacy interest in a constitutionally significant manner.
Note: dog sniff is, say 75% accurate, and PC only needs 50%, so dog sniff → PC US v. Place |
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Lack of intrusiveness
cops test white powder to see if drugs |
: not a search b/c test can only tell if illegal and there is no reasonable expectation of privacy for something illegal
However, it was a seizure because they destroyed powder; rationale - didn't destroy too much US v. Jacobsen |
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Lack of intrusiveness
shots fired into an apartment below. cops have warrant to look for shooters, weapons, injured persons. cops turn over stereo to see the serial number to tell if it was stolen |
: was a search because excluded the scope of the warrant they were there to look for weapons and injured persons.
gov. args (1) They could have argued that he merely tested the number—“thumbs up, thumbs down” (a) This would be analogy to the cocaine testing case or dog sniffing case (2) They could have argued that leaving the scope of the emergency and collecting the number on the back of the stereo did not exacerbate the intrusion onto privacy Arizona v. Hicks |
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Feeling luggage
F: cop feels bag and feels ‘brick-like’ meth |
IS a search.A: court says that there is a reasonable expectation that someone will not exploratorily feel up the bag. (Note how this doesn’t comport w/ Smith and Knotts!!) Dog-sniff analogy also doesn’t work b/c cop can feel more than just the meth when he feels the bag.
Govt argues bags get felt up all the time and smith and knotts? |
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X-Ray at airport
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Is a search b/c can see more than just something illegal, but it is a reasonable (step two) search b/c of consent. Applied step 2 balancing test: level of intrusion > govt interest.
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Thermal Imager
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Search b/c you can see more than the illegal activity. intimate bedroom activity.
Govt argues: a crude thermal imager that just bounces off the walls is much more like that dog-sniff. |
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Open fields
F: Cops cross over two fences and see a field of pot |
A: not a search b/c the Δ has left it open to the public
Δ argues: rzble expectation of privacy in private property and Δ can keep other people off, why not cops too! Oliver v. US |
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Open fields 2
Police hop the fence and shine light into barn, where there is pot; cops get W based on this info |
not a search b/c the barn was in an open field and not part of the curtilage
Δ argues and dissent said: this is the farmer’s office and an office gets 4A protection. US v Dunn |
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Physical intrusion onto curtilage
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is a search. curtilage is part of the home and entitled to protection.
FACTORS to determine if curtilage: 1) proximity to the home 2) included w/in enclosure w/ the home 3) nature and use to which area is put 4) steps taken by resident to protect the area from observation of passers-by US v DUNN |
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Air surveillance of curtilage
F: plane flew over curtilage at 1000ft |
A: not a search b/c Δ has exposed his curtilage to air traffic all of the time, so no reasonable expectation of privacy
Δ argues: There is a big difference b/t someone that doesn’t care about your curtilage and the police who are purposefully looking for something. Δ argues: not common for a helicopter at 500 ft to hover above his curtilage, so there is a reasonable expectation of privacy that this won’t happen. California v. Ciraolo |
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Air surveillance of curtilage
police fly in helicopter at 500 feet |
not a search for same reasons
Δ argues: There is a big difference b/t someone that doesn’t care about your curtilage and the police who are purposefully looking for something. |
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Office
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If it is an attorney office, or something like that, then this is probably a search b/c there is a reasonable expectation of privacy
Govt argues: if it is a cubical or something like that, then it is not a search b/c there is no reasonable expectation of privacy in a cubical b/c it is open for the public to see. |
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Trash
F: Cops search through trash |
Court says that this is not a search b/c when someone puts their garbage out on the street, they know that animals, children, and snoops have access to it.
Δ argues: There is an expectation that someone won’t go looking through your trash, and that a reasonable person would find this was an invasion of privacy and t/f a search. Δ also argues: bags are opaque and sealed and so there is an expectation of privacy at least until they are picked up, at which point they are mixed w/ other bags. California v Greenwood |
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Other searches - searches of
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Person
Home Personal papers, records “Frisk” Automobile Blood Test Breathalyzer |
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Person
Blood Test |
Δ: seizure of the person and search of his blood for presence of alcohol.
b. need PC, but not warrant b/c of exigent circumstances. Schmerber: |
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police follow private party search
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not a search State: privacy has already been destroyed by the private party.
b. Δ: the private party’s conduct is not motivated by concerns of finding incriminating evidence. c. must stay w/in the scope of the search by private party. d. however, the same reasoning doesn’t apply to the houses, hotel rooms, etc. b/c the situation can change after the private party’s search, while in the package, nothing changes b/w the private party’s search of it and the police search. jacobson |
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gov’s actions that can reveal only criminal information
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not a search
information b/c of its criminal nature, permits no expectation of privacy. b. 99.9 % of privacy is intact, and e.g. testing of the substance can reveal only criminal activity & no private information. c. it’s a litmus type test, yes or no answer as to whether the activity/substance is criminal. d. just like a dog sniff. |
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Standing
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Δ himself must have had his rights violated in order for him to complain
TEST: Was the Δ’s reasonable expectation of privacy violated by police action? |
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Standing
F: two Δ were in the car, and the cops searched it and found guns. Neither the car nor the guns belonged to Δ’s rights either Δ |
no standing
b/c the things that were seized did not belong to the Δs, their privacy bubble was not invaded, so they did NOT have standing. Although it is possible to have an expectation of privacy in something/place that is not Just a guest actually owned by the person, this is not as likely in a car as in a home. Rakas |
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Standing
Δs were putting together a cocaine transaction in the home of another. They were there fore 2 hours |
there was not a sufficiently intimate connection b/t the Δs and the apt to make the apt a part of the Δs’
bubble of protection, so they did NOT have standing. The court looked at the *nature of the transaction (business transaction) and the *time spent in the home. |
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Standing
W for man’s arrest, and he was staying at the Δ’s home. Cops searched the home. |
Man can’t complain about the violation of Δ’s rights b/c it wasn’t his rights that were violated.
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Standing
F: Δ was staying in an apt of a friend. He had a key and had a few personal items in the apt. |
A: the Δ in this case DID have standing b/c he had a reasonable expectation of privacy in the apt.
jones |
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Standing
Δ was an overnight guest |
A: the Δ DID have standing to complain b/c he had a reasonable expectation of privacy in the apt.
Minnesota v. Olson |
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Private party searches HYPO:
Ex-W turns H in for kiddy porn that she found on a couple of files on his computer. Cops look at more files than W did and find a lot of porn. |
Since the private party searched, the cops did nothing more than
C: NOT a search Δ: This is not very technologically advanced theory; I also don’t think that computer files are very static, and it is much more like a bedroom drawer than a mailed box. It seems like there is a control issue here too. |
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Private party searches HYPO:
F: Serr has a party at his home, and some guests find in a bedroom drawer some drugs. They call the cops, and the cops do nothing more than what the guests had done. |
b/c of the dynamic nature of the home (as opposed to the static nature of the package) there is not a guarantee that when the cops get there the drugs will still be in the drawer, the cops invade the bubble of 4th amendment protection when they “re”-search.
C: IS a search, so go to step two. |
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Exceptions to Rzblnes req.
Emergency / exigent circumstances F: Δ was in hospital after being in a wreck. Police smelled alcohol on breath and Δ was acting drunk. |
needs PC but no warrant
A: There was an exigent circumstance b/c the alcohol wouldn’t be in the Δ’s blood for very long, so the requirement for the police to get a warrant was gone. The cop did have PC b/c of the condition of the Δ. Schmerber v. California |
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Emergency/exigent circs
F: cops following man on train. Used a dog sniff to determine he was carrying drugs and then seized the container. Several hours later, the cops opened the container. |
A: There is NOT an exigent circumstance for the search b/c the cops had time to get W. Although there was PC, there was no W, so proceed to step three. This is the constitution protecting the privacy interest even through the possessory interest was reasonably violated.
Chadwick |
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Plain view seizure doctrine
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needs PC but no warrant
while searching for A (have W for) police may seize B • Cops must have lawful access to the object seized (w/in scope of W, PC) • The illegal nature of the evidence must be immediately apparent • NOT the same as something in plain view to the public that makes the government action not a search; this affects seizure at step two! |
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Plain view seizure doctrine
F: Cops were in a home looking for some jewelry and $ that were particularly described in a warrant. While there, they found in plain view some other guns and seized them. |
A: this was a seizure (step one), but there was no W requirement b/c this meets the requirements for the plain view seizure doctrine, and there was PC → so it was reasonable violation.
Horton |
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F: Shooter, shootee, gun (and moving the stereo)
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A: Don’t need W to seize the stereos if in plain view and PC. Here, not plain view b/c cops had to move the stereo to determine if it was stolen. In addition, at the time of the illegality (the moving of the stereo), there was no PC; there was just RS. You have to have PC when you stray; you can’t stray to develop the PC.
C: So, not reasonable violation of 4th amendment. |
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plain view seizure
F: cop lawfully frisked the Δ, felt something that he though might be a package of drugs, and he took the packet out of the pocket and it was drugs. |
A: this was a search, but it was no reasonable b/c there was not warrant, and the plain view/feel seizure doctrine requires 1) lawful presence • and 2) immediately apparent PC, which was not there in this case b/c cop has to take drugs out to confirm that they were illegal. It could have been a pack of flour or something
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Arrest
F: cops had W to arrest Lyons, who was staying at Steagald’s home. Cops don’t find Lyons there, but they do find drugs. |
Texas, there is a presumption that you need a warrant for arrest
If have W to seize Δ who is in home of another, need W to get into the home A: Cops have to have a W to search the place where they went, so cops should have had a W to search Steagald’s home. (If it would have been Lyon’s home, I’m pretty sure that this would have been okay) Govt argues: a plain view seizure Δ argues: first element is that the cops have to be there lawfully, and they were not, so no pvs Govt argues: Lyons has no standing to complain about a violation of Steagald’s rights. Δ argues: Lyons had reasonable expectation of privacy b/c he was a guest. Govt argues: well, then the W carries with it an implicit authority to search “home,” so we win. |
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Auto exception
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need PC no warrant
cop may search an automobile if there is PC evidence will be found • Rational: 1) mobility – since a car can move it makes sense to not require W (close to exigent circumstance rational) 2) there is a lesser privacy expectation in an automobile. Why? b/c cars are typically not repository of personal affects. Why? B/c the court says so. • Scope: wherever the PC leads you • Includes the TRUNK of the car if PC leads there • Does NOT have to be contemporaneous (b/c of second rational) • Also includes any containers in the car if the PC leads there |
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Search incident to arrest
F: cops had warrant to arrest the Δ, and then they searched Δ’s whole home and found drugs |
NO PC. NO WARRANT
when cop arrests, he may search immediate area, including car • Rational: this search is automatic (provided that there was a lawful arrest) b/c the Δ might use a weapon against the cop or destroy evidence (govt interest > intrusion) • Scope: weapons and evidence in the immediate control of the Δ • Does NOT extend into the TRUNK of a car (b/c this is not in immediate control of Δ) • Should be contemporaneous with the arrest • NOTE: doesn’t matter if search or arrest comes first as long as there is PC to arrest. A: although the cop may search Δ incident to arrest, he may not search the whole home. There is a reason to get the evidence that Δ could destroy and to make sure that there are no weapons that the Δ can get to. |
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Terry “frisk”
F: Δ was seen talking to known drug dealers. Cop led Δ outside and told Δ to “give him what he was after.” The Δ reached into his pocket, and cop reached with him and grabbed drugs. |
NO PC, NO WARRANT
• Rational: Govt says that can’t require cop to seize Δ and not frisk b/c this would be dangerous to cop; exigent circumstances, so no W. (Govt interest > intrusion) • Scope: Weapons only • MUST HAVE RS/RF that the suspect is armed and dangerous • → but remember the “plain feel seizure” doctrine There was a seizure b/c there was submission to show of authority. Then, the question is if it is reasonable, and it was not b/c 1) it was not an arrest (b/c it didn’t meet any of those elements), so couldn’t have automatic search incident to arrest, and 2) it exceeded the scope of a Terry frisk (b/c that is just for weapons and also requires RF/RS that the Δ is armed and dangerous, which the cop did not have). Note that Govt can argue either stop and frisk OR arrest and search incident to arrest. There are issues with both S/F: only need RF/RS, but there is limited scope. A/S: need PC, but have broad scope. |
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Inventory
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No PC, No Warrant
police can inventory an impounded car to protect those possessions for the owner • Rational: administrative justification—cops are just inventorying the car, not looking for criminal evidence, so why would they need W and/or PC • Scope: search has to be according to standardized predetermined procedure • This canNOT be a PRETEXT • Texas: You cannot open a container when you are inventorying; must seal and save • → and remember plain view seizure |
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consent
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No warrant, no PC
• Rational: It’s the 4A privacy rights, and if the Δ opens the privacy bubble himself, then the cop’s entry to that privacy bubble is not unreasonable • Scope: a reasonable officer’s consent of what the Δ consented to (usually hinges on if the Δ knew what the cop was looking for or not); note that the Δ can limit the scope however he pleases, it’s his bubble of privacy (and that → PC unless Δ is panicked, and then it might help develop PC) • Must be VOLUNTARY = not obtained in response to threats or submission to show of authority (consent and not submission) • Cop canNOT act like Δ doesn’t have a choice • But, cop doesn’t have to tell the Δ that he does have a choice |
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Consensual Encounter
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Trad: rzb psn free to leave?
Real: Encounter is not sufficiently threatening/ intimidating/invading of free movement to make fed. case no evidence needed to make rzbl police allowed to: Very limited: casual approach; ticket/license/few questions |
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STOP
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1) physical restraint OR
2) * submission to official show of authority no warrant needed but need RS - except for drunk driving stops police allowed to: Brief detention to Confirm → PC → arrest Dispel → citizen is free to go Cop may also frisk IF RS/RF Scope: weapons only |
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Arrest
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Seizure = 1) physical restraint OR
2) * submission to * official show of authority + time need only PC police can: Automatically police can do a search incident to arrest. Scope: weapons and evidence in Δ’s immediate control And cops can book ‘em |
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Difference b/t a stop and an arrest
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• “you are under arrest”
• length of time (20 minutes is usually an arrest) • move Δ from a public place → police dominated area • pulling a gun is NOT arrest but is seizure (if Δ submits) • handcuffs o may be just a STOP: Handcuff + squad car o ARREST: Handcuff + squad car driving |
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exclusionary rule exceptions:
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Evidence is not fruit of the poisonous tree (no but-for connection)
attenutation of the taint ( no prox cause connection) Good Faith Impeachment |
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independant source
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(no but for connection) – if the evidence was obtained during the illegal search and simultaneously was obtained from an independent legal source, the evidence is admissible.
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Inevitable Discovery
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no but for connection) – if the evidence was obtained during the illegal search and at the same time there was a legal path that would have inevitably discovered the same evidence, the evidence is admissible. (NOT IN TX).
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Attenuation of Taint
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no proximate cause) - the connection b/w the police misconduct and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.
reading Δ his Miranda rights (always be there, not a very important factor). b. temporal/spatial proximity of the illegal search/seizure and incriminating evidence/confession c. Intervening circumstances – any superceding cause that purges the taint of violation d. purpose and flagrancy of police illegality i. State: there is no proximate cause b/w illegal conduct & evidence b/c there some superceding cause. ii. Δ: there is proximate cause b/c given police illegality, “no surprises”: the evidence was a natural and foreseeable consequence of the illegality. |
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good faith reliance on a warrant
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Warrant – if the police reasonably rely on a warrant in conducting an illegal search or seizure, and the warrant later turns out to be invalid, the evidence discovered in the illegal search is admissible unless:
a. cop intentionally/knowingly/recklessly includes falsehoods material to the probable cause determination the affidavit. b. magistrate obviously not neutral and detached – he abandons his role and police knows/has reason to know a/b it. c. “bare-bones” affidavit – is so lacking w/ indicia of PC that it is unreasonable to believe the warrant was valid. d. facially deficient (particularity) – fails to describe the place being searched or what is being seized. i. in TX, in order for GF exception to apply, there must be PC. |
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Good Faith reliance on a statute
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Statute - if the police reasonably rely on a statute in conducting an illegal search or seizure, and the statute later turns out to be invalid, the evidence discovered in the illegal search is admissible.
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Impeachment Exception
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– if Δ takes a stand and says s/thing fundamentally inconsistent w/ the evidence that was excluded b/c it was illegally obtained, then the excluded evidence can be admitted to impeach Δ’s testimony.
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is the 5th amendment implicated?
NO |
PHYSICAL EVIDENCE
Blood Semen Picture Fingerprint voice recognition lineup slurs breathalyzer |
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is the 5th amendment implicated?
Yes |
When the information obtained is testimonially communicative
saying abc's backward (about content) asking date of 6th birthday (about content) refusal to blow into breathalyzer (but defendant loses b/c cops didn't compell\) |
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I. The First issue that arises is whether or not the Fourth Amendment is implicated.
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A. RULE: the 4th amendment is implicated when the government’s conduct invades a defendant’s actual subjective expectation of privacy and the expectation is one that the government is prepared to recognize as reasonable.
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2. Society is prepared to recognize an expectation of privacy as reasonable when
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given the nature of the individual’s privacy interest, the use of the unregulated surveillance technique would diminish the sphere of privacy protection to an intolerable degree. Its a value judgment.
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II. The next issue is whether or not ____’s fourth amendment’s rights were violated by
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an unreasonable search or seizure.
A. RULE: A search is reasonable when it is conducted with a warrant based on probable cause and in a manner that is reasonable. |
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when is a warrant valid?
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A warrant is valid when: (1) it is issued by a neutral and detached magistrate and (2) it particularly describes the place to be searched and things to be seized.
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where does PC exist?
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. Considering the totality of the circumstances there must be sufficient evidence to determine probable cause, the information in the application for a warrant must be true, and the warrant must be particularized to each thing and person to be searched.
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when is a search conducted in a reasonable manner?
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: A search must be conducted in a reasonable manner, meaning that the scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.
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III. Because the search is unreasonable and the defendant’s fourth amendment rights have been violated, it must now be determined whether or not to apply the exclusionary remedy.
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A. RULE: when a search is unreasonable and a defendant’s fourth amendments rights have been violated, the evidence obtained by that search is not allowed at trial.
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fourth seizure analysis
V. The First issue that arises is whether or not the Fourth Amendment is implicated. |
A. RULE: the 4th amendment is implicated when the government’s takes possession of your property or person
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seizure of person
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2. A seizure of a person occurs when an individual in the defendant’s shoes would believe that he is not free to leave and that interference with the defendant’s freedom of motion is significant enough to trigger application of the fourth amendment.
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(a) There are three types of police/citizen encounters:
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i. A consensual encounter is not a seizure because a RP would feel free to leave the encounter and the government’s activity is not threatening or intimidating enough to implicate the 4th amendment. (Gov. wins at step 1).
ii. A stop occurs when there is an interference with free movement that is of a presumptively temporary in nature. A stop is a seizure. (i) A seizure requires either actual, physical restraint or submission to an official show of authority. iii. An arrest is interference with free movement that is presumptively more continuous in nature. An arrest is a seizure. (i) The test is the subjective belief of the suspect. Did he believe that he was under arrest? |
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an unreasonable seizure.
Stop |
A “stop” is reasonable when the police have reasonable suspicion. Police Have RS when they can articulate facts that indicate criminal activity may be afoot. RS is more than a hunch but less than probable cause.
a stop never require a warrant |
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an unreasonable seizure.
arrest |
An “arrest” is reasonable when the police have probable cause. When the police seize a person, the probable cause develops right then and there.
a felony arrest in a public place never requires a warrant b/c of exigent circs. 2. RULE: However, the fourth amendment requires a warrant to arrest someone in their home. 3. RULE: The use of deadly force requires PC and some circumstance that makes the use of deadly force reasonable. |
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what if a seizure is unlawful?
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III. If a seizure is unlawful, anything found on the defendant after the seizure occurs will be fruit of the poison tree and will not be admitted into evidence.
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5th amendment
I. The first question is whether or not the fifth amendment is implicated by the government actions. A Fifth amendment rights are implicated when Miranda is implicated. |
Miranda is implicated when there is custody that constitutes an arrest and a subsequent interrogation.
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1. We must ask whether _______was an arrest or merely a stop or consensual encounter.
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(a) RULE: An arrest is interference with free movement that is presumptively more continuous in nature. An arrest is a seizure.
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there must also be an interrogation
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An interrogation is express questioning or the functional equivalent of express questioning, which are words are actions that the police know or should have known
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II. If a Miranda is implicated because of a custodial interrogation, the next question is whether or not the government violated Miranda. Miranda rules are necessary to show that the individual chose to submit himself to the interrogation and subsequent confession.
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When an interrogation occurs, the government must read the defendant his rights to prove that the citizen has submitted himself voluntarily, even if the defendant knows his rights.
(a) Right to remain silent (b) Any statement made will be used as evidence (c) Right to an attorney and (d) if cannot afford one will be appointed to you. |
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2. HOWEVER if an officer fails to read a defendant his Miranda rights
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immediate concern for public safety, incriminating statements will still be admissible.
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The next question is whether or not, despite being informed of his Miranda rights, did the accused
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knowingly, intelligently, and voluntarily waive those rights?
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2. A waiver of rights is voluntary when the accused confesses on his own will.
(a) HOWEVER, once a person invokes the right to remain silent, the police may re-approach the accused with questioning as long as they |
i. Stop questioning immediately upon invocation
ii. Time has elapsed iii. They re-Mirandize the accused iv. They have not exceeded a reasonable amount of approaches. |
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(b) Also, once a the person has asserted the right to an attorney present the police may not re-approach him unless
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the suspect initiates conversation or the attorney is present
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III. If a person’s fifth amendment rights have been violated it must be determined whether or not the exclusionary rule applies.
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A. RULE: any information obtained in violation of a defendant’s 5th amendment rights where the police cannot show that they read a person his rights and show that the defendant waived those rights is Fruit of the poisonous tree.
(a) Likewise, because the police are not relying on another individual’s judgment in an interrogation there is no good faith exception. (b) HOWEVER, there may be an impeachment exception that allows a confession to be admitted at trial if the confession is used to impeach the defendant’s testimony, but the confession must have been voluntary. |
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A defendant’s right to due process is violated if
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if the police action shocks the conscious.
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B. RULE: Police action shocks the conscious when:
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1. Actions include beatings, denying of food, denying sleep
2. There is an involuntary confession due to circumstances above or “Christian burial speech” (ex.) 3. Unnecessarily suggestive lineup |
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III. The remedy to be applied when due process has been violated is
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to either reverse the conviction or exclude evidence.
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