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29 Cards in this Set
- Front
- Back
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Is the Fourth Amendment implicated?
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Katz analysis
1) Subjective 2) Objectively reasonable Value Judgment = Given the nature of the individual's privacy interest, would it be inconsistent with the goals of a free society to permit this form of police activity to go unregulated? Boundaries = Search v. Not a Search |
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Fourth Amendment Boundaries:
What is a search |
Auto, Blood Test, Breathalyzer, Containers, Curtilage, Home, Personal papers, Person (incl. "frisk"), Squeezing luggage, Telephone conversation, Thermovision, "Beeper" in house
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Fourth Amendment Boundaries:
What is NOT a search? |
Air surveillance (fixed-wing or helicopter), Dog sniff, Field test, Open fields, Pen register, Private-party searches, Trash on curb, "Beeper" tracking car
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Was the Fourth Amendment violated?
or: Was the search/seizure unreasonable? |
1) Warrant
2) Probable cause (sufficiency/veracity/particularity) 3) Reasonable manner (scope) Scope = Must be reasonably tied to and justified by the circumstances which rendered its initiation permissible |
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Exceptions to Warrant/Probable cause:
Balancing Test |
Balancing Test:
1) Magnitude of the intrusion on the individual 2) Government's interest (special need) in performing the search without a warrant or probable cause |
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Exceptions to Warrant/Probable cause:
Specific Exceptions - PC, no W |
1) Emergency exception
2) Plain-view seizure 3) Auto exception |
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Exceptions to Warrant/Probable cause:
Specific Exceptions - No PC, no W |
1) Search incident to arrest (incl. car)
2) Terry "frisk" 3) Inventory search 4) Consent search 5) Border searches |
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Emergency Exception
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Probable cause, NO warrant
Evanescent evidence or "hot pursuit" Probable cause develops spontaneously while in the suspect's presence |
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Plain View Seizure
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Probable cause, NO warrant
Requirements: 1) Lawful access 2) Immediately apparent Includes "plain feel" seizure |
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Auto Exception
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Probable cause, NO warrant
Does not have to be contemporaneous (scene or station) Scope = wherever probable cause takes you |
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Search Incident to Arrest (incl. car)
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NO probable cause, NO warrant
Scope: 1) Weapons and evidence 2) Person and area w/n immediate control Automatic if lawful arrest BUT: a) Must be contemporaneous with arrest b) Does not extend to the trunk of the automobile |
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Terry "frisk"
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NO probable cause, NO warrant
Reasonable suspicion/fear suspect is armed Scope = weapons only |
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Inventory Search (person/car)
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NO probable cause, NO warrant
Must be in accordance with standardized procedures (admin. not criminal) NOTE - CANNOT be a pretext |
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Consent Search
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NO probable cause, NO warrant
Consent cannot be the fruit of an illegal seizure (Royer) |
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Border Searches
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NO probable cause, NO warrant
BUT = nonroutine searches (strip, body cavity) probably require at least reasonable suspicion |
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If the search/seizure was unreasonable (the Fourth was violated), then what remedy?
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Exclusionary Rule (deterrence, Mapp)....unless exceptions apply
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Exceptions to the Exclusionary Rule
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1) Evidence is not FPT
a) Indep. src. (no but-for) b) Inevit. disc. (no but-for) c) Attenuation of Taint (no proximate) 2) Good Faith a) Warrant - Leon b) Statute - Krull 3) Impeachment |
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Good Faith Exceptions Test
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Would a reasonably well-trained officer with reasonable knowledge of the law rely on the warrant/statute?
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Leon Caveats
(exception fails) |
1) Cop at least recklessly provides false material in the affidavit for the probable cause determination
2) Magistrate obviously not neutral and detached 3) "Bare-bones" affidavit 4) Facially deficient (e.g., no particularity) |
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Texas Recognized Exceptions
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1) Independent source
2) Attenuation of Taint 3) Warrant (much narrower than Leon) 4) Impeachment |
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What is a seizure?
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Hodari
1) Actual physical restraint 2) Citizen submission to a governmental show of authority - "show of authority" = words/actions on the part of the police showing they wish to control a suspect |
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What is a seizure?
(Bostick) |
Whether a reasonable person would feel free to decline the officer's request or otherwise terminate the encounter
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When is an encounter NOT a seizure?
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1) follow
2) chase 3) question bus passenger when bus about to leave 4) police request to search a person |
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Arrest v. Stop
(Test and Quantum of Suspicion) |
Arrest
1) Test = Hodari PLUS likelihood of indefinite future confinement 2) Probable Cause Stop 1) Test = Hodari 2) Reasonable suspicion (more than a hunch) |
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Examples of Reasonable Suspicion
and Exceptions to Reasonable Suspicion |
Examples
1) Drug courier profile 2) Traffic stop 3) Suspect flees in panic Checkpoint Exceptions: DWI (Sitz) and Immigration |
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Lawful Incidental Police Activity
Arrest |
1) Reasonable force to effectuate the arrest
2) Full search incident to arrest 3) "Book 'em" 4) Custodial interrogation (but Miranda) |
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Lawful Incidental Police Activity
Stop |
1) Brief field detention
2) Oral investigation 3) Pursue consent to search for evidence 4) Terry frisk for weapons if RS that suspect is armed 5) "Plain feel" seizure of evidence NOTE - non-custodial, therefore no Miranda |
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Examples of Arrests
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1) "You're under arrest."
2) Movement from a public place to a police dominated area 3) Lengthy detention (20 mins = danger zone) 4) Conduct objectively associated w/ arrest (handcuffing and putting in squad car, searching for evidence, reading Miranda rights) |
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Examples of Stops
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1) Citizen tries to leave but told to stop
2) Command to stop, not request 3) Police surround citizen 4) Police point gun at citizen 5) Police say "You are not free to leave" 6) Communication to citizen in car to stop the car 7) "Royer" before closet 8) Physical restraint NOTE - 1-6 only are stops if citizen submits |
