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53 Cards in this Set

  • Front
  • Back

How can 4th Amendment protected actions be characterized?

Searches, siezures and electronic survellaince

What are the four steps to take when analyzing a search under the 4th Amendment?

[1] Was there a search? Katz reasonable expectation of privacy. If not no search, no 4th.


[2] Was the gov't the actor?


[3] Did the arrest comply with the warrant requirements of the 4th Amd?


[4] Was there a valid exception to the warrant requirement?

What does the 4th amendment say?

The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularity describing place/person/things searched

What constitutes a search?

The gov't violates a reasonable expectation of privacy.

What device can help remember the reasonable expectation of privacy doctrine?

no REP = NO CONPLAINt


NO REP - miscellaneous exclusions


CONsent to search doctrine


PLAIN view doctrine



NO CONPLAINt


What are the miscellaneous exclusions to R.E.P.?

(Say your ABCDE's)


[1] Voice exemplars


[2] Abandoned property (garbage)


[3] Bank records


[4] Confidants


[5] Dog sniffs


[6] Electronic Devices

What is the REP rule regarding garbage?

No REP in abandoned property/trash, but police may not trespass to get the trash. Some courts: inspection is not allowed until trash is commingled with common receptacles (i.e. truck or dump).

What is the REP rule regarding bank records?

Depositor of checks, deposit slips, etc. takes risk in revealing private affairs to another. No RIP, so gov't may subpoena records without a warrant/probable cause.

What is the REP rule regarding general confidants?

Defendant's generally assume the risk that any person spoken with may: report the conversation to others/authority, or tape and transmit the conversion. No warrant/PC required. US v. White.

What is the REP rule regarding dog sniffs?

No PC/warrant required to sniff luggage in police custody for drugs. No REP. US v. Place.

What is the REP rule regarding electronic devices with respect to pen registers?

No REP in numbers dialed, so no PC/warrant needed to collect numbers in a 'pen register' Smith v. Maryland. Also police may use tracking devices on cars/packages without a warrant (no REP). US v. Knotts

What is the REP rule respecting voice identification?

No REP in the belief that others will not recognize your voice. A grand jury may subpoena voice exemplars without pc/warrant.

How to remember the items falling in the plain view exceptions to REP?

Open areas that are private


Private areas if police are given consent


Public places


Inventory searches


Justifiable intrusions


Frisk incident to lawful arrest



What is the plain view rule respecting public areas?

Police may observe things from public areas unless using a very sophisticated device. (parabolic microphone). Binoculars are OK without warrant.

What is the plain view rule respecting open space on private property?

Even if view requires a trespass (long walk down an open field) there is no REP in private open lands and therefore no pc/warrant required to observe them.

What is the plain view rule regarding police inventories?

Police have a lawful right to search their inventories. Impounded car search requires no warrant.

What is the plain view rule regarding justifiable intrusions?

Any lawful purpose to enter (hot pursuit of a felon, inspection of dangerous condition, call for help, warrant etc.) gives rise to observations made without a showing of PC/warrant.

How does the plain view doctrine relate to frisks?

Items felt during a lawful frisk incident to a lawful stop are in 'plain view' and police my enter clothing without a warrant/pc to discover the items believed to be weapons.

What are the issues that may arise regarding a consent search (no REP due to consent)?

"VISTA"


- Voluntary


- Implied consent


- Scope of the search


- Third party consent


- Advance consent

How is the voluntary aspect of consent in a REP analyzed?

Examine the totality of the circumstances. Implied coercion is forbidden, but deceit can be used to gain consent if not extreme (lying that you have a warrant is extreme). Notice that consent is voluntary is not required, even for suspects in custody.

When is consent to a search implied?

Statutes may require consent at any time (to sell firearms, cigarrettes...) or to travel (bags at airport). These searches are valid unless unreasonable.

How does scope relate to consent searches?

The one consenting to a search controls the searches scope. Searches exceeding the scope of consent are unlawful.

What is advance consent?

Contractual consent to search a locker or home, often used with parolees.

May a third party consent to a search of property?

Yes, any person with joint use or access may grant consent. No REP that they would not. Reasonable good faith that the consenting party has authority (apparent authority) is OK.

What are the requirements of a valid warrant?

"SIP ON"


Specificity


Independent judgement


Probable cause


Oath required


Neutral magistrate



(SIP ON)


What does it mean that a valid warrant permit an independent judgment?

Facts must be stated in sufficient detail to lead the magistrate to conclude that the evidence sought will be discovered. Mere conclusions by the affiant are improper.

(SIP ON)


What can a Def. do if an affiant was untruthful under oath of warrant?

A Def. may make a substantial showing of deceit or reckless disregard for the truth, a hearing may be held to invalidate the warrant.

(SIP ON)


Is a technical mistake allowed on a warrant?

Errors are normally not fatal when the error could cause the officer to mistake the place searched.

(SIP ON)


Can a magistrate remedy a vague warrant by supervising the search?

No. Loji Sales v. NY

(SIP ON)


What issues must be looked at to assess probable cause for a warrant?

"HAPS"


Hearsay considerations


Affiant experience


Proof standard


Stale information not permitted

What hearsay standard governs warrant affidavits?

The totality of circumstances test. Gates factors:


[1] reliability of the informant


- unnamed tipster: is the info already known


[2] basis and detail of knowledge


[3] Underlying facts - specifics to support story


[4] corroboration if PC is not certain

What standard of proof is required to issue a warrant?

Traditionally, the object of the warrant must be more likely met than not met. Less than PC may be used for acquisition of fingerprints.

What sort of issues can arise in the execution of a warrant?

FUND Time


Forced entry - must give knock and notice unless exigent circumstances exist


Undescribed items - may be seized under plain view doctrine if PC that item is contraband, etc.


Night - OK but look to state law/general reasonableness


Detention incidental to warrant - valid search implies authority to detain persons on premises


Time - must be a reasonable time from issuance

What are the general categories of the exceptions to the warrant requirement? (warrantless searches allowed)

"CR.I.B."


[1] Exigent Circumstances/Reasonable Cause


[2] Incident to other legal actions


[3] Border searches

(CR.I.B)


What are the exigent circumstances or that give rise to reasonable cause to conduct a warrantless search?

"SHAVE"


Stops (investigatory, Terry)


Arrest (felony)


Hot Pursuit


Vehicles


- public highways


- seized from a public place


Evidence loss impending

(SHAVE)


What is the rule regarding felony arrest without a warrant?

A suspected felon may be arrested at any time without a warrant if there is PC and the suspect is in a public place. US v. Watson

(SHAVE)


Must a warrant be obtained to arrest a suspected felon who is in his own home?

Yes. NY v. Payton. But if the suspect is seen in the doorway police may follow them into the house to make an arrest.

(SHAVE)


What are the limits of a hot pursuit warrantless search?

Police may search the premises of a felon who is still at large. Hayden But the blanket search of a murder scene may not be constitutional.

(SHAVE)


What are the exigent circumstances exceptions to the warrant requirement respecting vehicles?

If there is PC that contraband will be found police may stop and search a vehicle on the highway.


- May search the vehicle later if driver is detained and vehicle is in custody


- Extends to suitcases/closed containers in the vehicle


- Extends to open public parking lots

(SHAVE)


What is a Terry stop?

A valid stop when there is reasonable suspicion (PC > RS > hunch) is, will or has committed a crime.

How is a Terry stop applied to automobile stops?

Vehicles may be stopped if officer can articulate basis for RS that:


- car is unregistered


- driver is unlicensed


- driver is subject to seizure for violating the law

Does a Terry stop cover randomly asking for an ID?

No, but police can do so without even having RS. Failure to comply (i.e. not have ID) is not actionable.

Is a Terry stop of embarking passengers into a private search room allowed?

No. A private search would require P/C.

(CR.I.B)


Warrantless searches are allowed Incident to what types of lawful gov't conduct?

"ST.A.IN."


Stop


Arrest


Inventory

(ST.A.IN.)


What type of search is permitted in conjunction with a lawful stop?

A suspect may be frisked if the police have R/S that he is armed/dangerous. Terry. Presence at a lawful search site alone is not enough, there must be particularized R/S of danger or that a person had evidence.

(ST.A.IN.)


What warrantless search is allowed incident to a lawful arrest?

Everything within the arms reach of the suspect to prevent destruction of evidence. Chimel Passenger area of vehicle search allowed only if R/S that passengers will access vehicle or that evidence exists. Gant

(ST.A.IN.)


When must a warrantless search of an arrestee be conducted?

Contemporaneously with arrest (or immediately preceding.

(ST.A.IN.)


What sorts of offenses give rise to a warrantless search incident to arrest?

Any crime, including traffic violations although some states do not allow this.

(CR.I.B)


What types of warrantless searches exist at the border and what are the rules?

[1] Fixed checkpoints:


- Stops - allowed without cause


- Searches - P/C required to conduct a search


[2] Roving patrols


- Stops - R/S


- Searches - P/C

What are the three protections surrounding confessions and statements?

"MIM"


[1] Miranda Rule


[2] Involuntary statements as a violation of the 5th amendment right against self incrimination.


[3] Massiah right to counsel

(MIM)


What are the 4 parts of a Miranda warning?

You have the right to:


[1] remain silent


[2] the presence of an attorney




[3] Statements made can be used against Def.


[4] Attorney available if Def. cannot afford

What are the major issues related to Miranda defenses?

"Use FICA"


[1] Use




[2] Form


[3] Interrogation


[4] Custody


[5] Assertion or Waiver

(Use FICA)


How does the use of statements relate to Miranda?

Statements taken in violation of Miranda may be used to impeach a Def., however assertion of the right to silence may not be used to impeach credibility unless pre-arrest silence is