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46 Cards in this Set
- Front
- Back
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What is the 4th Amendment?
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answer
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What does the 4th Amendment protect?
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People not places (though the home has turned out in caselaw to be sacred)
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What's the test for whether a search has occurred?
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1. Subjective privacy interest
2. Privacy interest must be “reasonable” (objective) |
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Why are searches of pen registers valid?
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No reasonable expectation of privacy in information turned over to third parties.
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What are the factors a court considers when determining what is curtilage?
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1) proximity to home 2) enclosure also surrounding home 3) use 4) steps taken to prevent trespassing (not determinative Ciraolo)
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Why is thermal heat detecting unconstitutional?
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Use of technology not available to general public unconstitutional; also this case seems to protect the home not people
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What do courts look at as far as location?
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Both where the agent was and the location of the target?
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What are some of the factors that could play into whether a search was reasonable?
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• Means of intrusion/Manner of surveillance
• Location • Efforts to conceal • Nuisance (noise/wind) • Observation or lack of intimate actions • Trespass? Privacy • Dissent = purpose • Legal limits |
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What is the definition of seizure?
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Meaningful interference with property
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Can a cop seize something without probable cause?
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No
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Can cops seize property without a warrant?
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No. UNLESS they have probable cause it is:
1. Contraband 2. Fruits of a crime 3. Evidence 4. Weapons or instrumentalities of a crime |
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What is the definition of probable cause?
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w/in officers’ knowledge, on trustworthy information, sufficient to give reasonable person belief crime has/is committed
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What factors does the court use to analyze whether a cop had probable cause based on information from an outside source (informant)?
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Quality of the information -- was it reliable and trustworthy?
What would a reasonable judge think? Is there more than mere suspicion but not quite certainty? Strength of inference |
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What is the current test for informant reliability?
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Totality of the circumstances influenced by whether the information/and the informant were reliable
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What are the exceptions to the warrant requirement?
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o Exigent circumstances
o Search incident to an arrest o Automobile exception o Inventory exception o Plain view o Consent o Terry If none of these apply go to REASONABLENESS |
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How long after a warrantless arrest must a judge find probable cause?
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48 hours
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What are the elements of a valid warrant?
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Probable cause
Oath or affimation Particularity -- Must describe in detail (specific) Judge must be detached (Lo-Ji – can’t become personally involved in search) |
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What is the knock and announce rule?
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Must knock and announce unless reasonable suspicion (more than hunch, something like shutting police out after answering) it would be futile, dangerous, or result in destruction of evidence
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When must a search cease or be narrowed?
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When more information is gathered
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Can you search people when you have a search warrant for a place?
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Not unless you have PC but you can detain them
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Can you arrest a felon in a public place w/o warrant?
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Yes.
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What counts as exigent circumstances?
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Hot pursuit of fleeing felon
Imminent destruction of evidence Danger to police and others |
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If using exigent circumstances on home
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then must have RS that person is inside
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What are the two justifications for the incident to arrest exception?
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Safety of the officer
Destruction of evidence |
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When may police search the passenger compartment of a car incident to arrest?
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When it's reasonable to believe that the person has access DURING search, or there is evidence related to the crime of arrest
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Under the automobile exception can the police look in car during traffic stop?
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Yes. Even if pretext, anything in plain view is OK.
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What is the justification for the automobile exception?
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There is a constitutional difference between houses and cars; cars are already severely regulated
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What about containers in cars?
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If there is probable cause that the object is in car can look in containers (even closed ones) that are big enough
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What about containers outside of cars?
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Off limits but can seize with PC and then get warrant to open
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What is the test for plain view?
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1. Lawfully present at place where evidence is plainly viewed
2. Lawful right of access to object 3. Incriminating character of object must be “immediately apparent” |
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Can officers touch something to see if it's contraband?
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No.
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What are the things we look at with consent?
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1. Voluntariness
2. Scope 3. Third-party consent 4. Apparent authority |
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Consent must be:
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Reasonable and voluntary
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How do we determine if consent was reasonable?
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We look at if the scope and the duration and if it was withdrawn.
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How do we determine if consent was voluntary?
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Totality of the circumstances
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What about containers in a house or car that has been consented to?
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Case by case. What would the typical person have understood by the exchange between the officer and the suspect
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When does an officer need only reasonable suspicion instead of probable cause to stop a person?
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They can stop and frisk someone when they have reasonable suspicion that a crime is about to or has been committed and that the suspect is armed.
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What must this reasonable suspicion be based on?
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Articulable facts
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What is the purpose of the Terry doctrine?
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Officer safety
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How long can a Terry seizure last?
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No longer than necessary to effectuate the search?
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So where is the line?
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A reasonable person has been seized if they would not feel free to leave because of totality of the circumstances based on show of authority or weapons or force
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Can anonymous tips be based on RS?
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Yes. And need less veracity but must do more than just describe someone. Must predict some future behavior.
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Are protective sweeps allowed?
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Yes if RS to believe someone armed in hosue
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Can seizure happen on RS?
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Yes but must be brief
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Can search cars on RS?
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Yes if there's RS to believe person has access to weapons then can search places where weapons might be
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When searching incident to arrest where can police search?
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Person and area of immediate control
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