Criminal Procedure: Search And Seizure

Front 1

When is a search and seizure governed by the Fourth Amendment? 4 questions

Back 1

1) Was the search and seizure executed by a government agent

2) Was the area or item protected by the 4th amendment

3) Did the governmetn agent either phsyscally intrude on a protected area or violate an individuals reasonable expectation of privacy?

4) Did the individual subjected to the search or seizure have standing to challenge the Agents conduct?

Front 2

Possible Government Agents

Back 2

1) Publicly paid police, either on or off duty

2) Private citizens if, and only if acting at the direction fo the police

3) Private security guards, if deputized wiht teh power to arrest

4) Public School administrators

Front 3

4th Amendment protection of houses: Included spaces

Back 3

The entire buidling, plus the curtilage

Front 4

Items Unprotected by the 4th amendment

Back 4

1) Physical Charateristics

2) Odors from car or luggae

3) Garbage

4) Open Fields

5) Financial Records

6) Airspace

7) Pen registers

Front 5

Two tests for determining whether a search or seizure implicates 4th amendment rights

Back 5

1) Trespass Based test

2) Privacy Based Test

Front 6

Tespass Based Test:

Back 6

Did the agent physically intrude on a constitutionally protected area in order to obatin information (GPS tracker on car)

Front 7

Privacy Based Test:

Back 7

Did the agents search or seizure of a constitutionally protected area violate an individuals reasonable expectation of privacy

Front 8

To satisy the privacy based test: an individual must show

Back 8

1) an actual or subjective expectation of privacy in the area searched or items AND

2) That the privacy expectation was one that society recognizes as reasonable

Front 9

When a police search is presumptively unreasonable

Back 9

When it uses a device that is not in public use to explore details of the home that officer could not have known without physical intrusion (thermal imaging - if the public doesn;t have the technology, police can't use it)

Front 10

Who has standing to to challenge the lawfulness of search or seizure

Back 10

Only people whose personal privacy rights were invaded

Front 11

When a persons privacy rights are violated

Back 11

1) if they own the premises searched

2) if they reside on the premises searched

3) If they are an overnight guest at the place searched (only those areas they coudl be expected to access)

4) If they own the property seized, ONLY if thye have a reasonable expectation to provacy int eh area from which it was seized

Front 12

When a persons privacy rights are NOT violated

Back 12

1)If they are using someone elses residence for commercial activity

2) if the car they are a passenger in is searched

Front 13

NY rule on passengers rights in searches of automobiles

Back 13

A passenger can challenge the possession of weapons on unreasonable search and seizure grounds if possession is attribute to them

Front 14

4 questions to determine if a search with a warrant satisfies 4th amendment grounds

Back 14

1) was the warrant issued by a neutral and detached magistrate

2) was there probable cause for the warrant, and is it sufficiently particular

3) if no probable cause, did the officers rely on a defective warrant in good faith

4) Was the warrant properly executed by the police

Front 15

Neurtal And detached Magistrate: rule

Back 15

A judicial offficer is not neutral for fourth amendment purposes when her conduct deminstrates bias in favor of the prosecution

Front 16

Warrant: Probable Cause standard

Back 16

There must be proof of a fair probability that contraband or evidence of a crime will be found in the area searched

hearsay admissible, anonymous tips acceptable

Front 17

Probable Cuase supported by anonymous tip: rule

Back 17

the tip must be corroborated by the police withe enough information to make a common sense practical determination that probable cuase exists based on a totality of the circumstances

Front 18

NY Rule for use of an informants tip: Aguilar Spinelli

Back 18

To use an informants tip, teh government must establish

1) The informants reliability or veracity AND

2) his or her basis of knowledge

Front 19

Aguilar Spinell- Lack of basis of knowledge: Exception

Back 19

When the informant has not revealed the basis fo knowledge, the probable cuase may be established through police observation that confirms sufficient detail of, or directly related to, the criminal activity in question

Front 20

Warrant Search: Particularity Requirement - two necessary items

Back 20

1) the place ot be searched AND

2) the items to be siezed

Front 21

Reliance on defective Warrant: rule

Back 21

An officers good faith reliance on a warrant which is defective due to the absence of probable cause can make it valid

Front 22

Reliance on defective warrant: NY Rule

Back 22

No good faith reliance exception

Front 23

Four exceptions to good faith doctrine

Back 23

1) when the affidavit supporting the warrant is so egregiously lacking in probable cause that no reasonable officer would have relied on it

2) The warrant is so facially deificient as to particularity that the officers could not reasonably presume it was valid

3) the affidaviit relied upin by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cuase finding

4) The magistrate was biased

Front 24

When a Warrant is not needed for a search: 8 times ESCAPIST

Back 24

1) Exigent Circumstances

2) SILA (search incident to arrest

3) Consent

4) Automobile

5) Plain view

6) Inventory

7) Special Needs

8) Terry (Stop and Frisk)

Front 25

Exigent circumstances obviating need for warrant

Back 25

1) Evanescent evidence

2) Hot pursuit of a fleeing felon

3) Emergency Aid

Front 26

Evanescent Evidence: definition

Back 26

Evidence that woudl dissipate or dissapear in teh time it woudl take to get a warrant (does nto include Blood Alcohol

Front 27

Hot pursuit: Rule

Back 27

Officers can search the home of a suspect or third party top search for fleeing felon, and anything discovered in plain view during such a search is admissible

Front 28

Emergency Aid: Rule

Back 28

A police officer can enter a home when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury

Front 29

SILA: Three requirements

Back 29

1) Arrest must be lawful

2)The search must be contemporaneous in time and place with the arrest

3) The area permissible to be searched is the wingspan

Front 30

NY Wingspan rule: closed containers

Back 30

In A SILA, to search closed containers in the suspects wingspan, the police must have a reasonable belief that the suspecyt is armed and dangerous

Front 31

Automobiles Searched Incident to Arrest: Permissible scope

Back 31

the interior cabin, including closed containers, but not the trunk

Front 32

Autombiles Searches: suspect detained

Back 32

Officer can only search the vehicle if she has reason to believe it may contain evidence relating to the crime for which the arrest was made

Front 33

NY Rule: Automobile search when the suspect is out of car

Back 33

Cannot search closed containers

Front 34

Consent: Rule

Back 34

Consent to a search must be voluntary and intelligent. Officers do NOT need to tell someone they have the right o refuse consent

Front 35

Scope of Consent: Rule

Back 35

Consent extends to all areas which a reasonable officer would believe permission to search was granted

Front 36

Apparent Authory to Consent: Rule

Back 36

If the officer obatins consent to seach from somone who lack actual authority to grant it, the consent is still valid under the 4th amendment provided the officer reasonably believed the consenting party had actual authority

Front 37

Consent: Share Premises Rule

Back 37

When adults share a residence, any resident can consent to a search of common areas within it

Front 38

Consent: Shared Premises - objecting tenant rule

Back 38

If a co-tenant who is present on the premises objects to the search of common areas, the objecting party prevails

Front 39

Automobile Searches (NOT SILA): Standard

Back 39

Polcie officers must have probable cuase to believe that contraband or evidence of crime will be found in the vehicle

Front 40

Automobile Searches: Scope

Back 40

The Entire vehicle, and any package, luggage, or other container that may conatin the items for whcih there was probable cuase to search

Front 41

Traffic Stops and Auto Searches: rule

Back 41

A routine traffic stop may allow an officer the right to search the entire vehicle, provided that the officer acquires probable cause prior to the search

Front 42

Plain View: Trhee requirements for seizure

Back 42

1) lawful access to the place from which the item was seized

2) Lawful access to the item itself

3) the criminality of the item must be immediately apparent

Front 43

Inventory Searches: Context

Back 43

1) Booking individuals into jail

2) Impounding vehicles

Front 44

Inventory Searches: Rule

Back 44

Constitutional provided

1) the regulations governing them are reasonable in scope

2) the search complies with those regulations AND

3) the search is conducted in good faith - to safeguard owners right to possession and ensure safety

Front 45

Special Needs: When they exist

Back 45

When there is a speical need by law enforcement, governmental employers and school officials beyong a general interest in law enforcement

Front 46

Special Needs: 4 categories

Back 46

1) drug testing

2) Parolees

3) School Searches

4) Border Searches

Front 47

Special Needs: Drug Testing - when permissible

Back 47

1) Railroad Employees Following an accident

2) Customs Agents responsible for drug interdiction

3) Public School Children Participating in ANy extracurricular activities

Front 48

Special Needs: Parolees: Rule

Back 48

Warrantless, Suspicionless searched of a parolee and his home are permissible as a condition of parole

Front 49

Special Needs: School Searched

Back 49

Warrantless Searches of the person and their effects of public school children are permissible to investigate violations of school rules. Must be reasonable, not excessivley intrusive, given teh nature of the infraction, and age and sex of the student

Front 50

Border Searches: Rule

Back 50

Nobody has fourth amendment rights at the broder with respect to routine searches of persons and effects

Front 51

Non Law Enforcement Primary Purpose Test:

Back 51

A special Needs search is not permissible if the law enforcement program or practice's primary purpose is to gather criminal evidence for general use by law enforcement

Front 52

Terry Stops: Definition

Back 52

A breif detention or seizure for the purpose of invesitgating suspicious conduct. Can take place anywhere

Front 53

Terry Stop: When you are seized

Back 53

When based on teh totality of the circumstances a reasonable person would not feel free to leave or to decline an officers request to answer questions

Front 54

Factor in evaluationg a Terry seizure

Back 54

1) did the officer brandish a weapon

2) the officers toen and demeanor

3)Was teh individual told they had the right to refuse consent

Front 55

Pursuit/Seizure: rule

Back 55

A person is seized when being prusued ONLY if they submit to the officers authority by stopping, or if the officer physcially restrains them

Front 56

NY pursuit/Seizure rule

Back 56

The person being pursed is always seized pursuit = seizure

Front 57

Traffic Stops: 3 rules

Back 57

1) In a traffic stop, the driver and passengers are seized - either can challenge the legality of the stop

2) The officer may in her discretion order everyoen out of the car

3) Dog sniffs are permissible provided the stop is not unreasonably prolonged

Front 58

Terry Frisk: Definition

Back 58

A patdown of the body and outer clothing for weapons that is justified by an officers belief that a suspect is armed and dangerous

Front 59

Terry Frisk: What can be siezed

Back 59

1) anything reasonably beleieved to be a weapon

2) ANything instantly recognized as contraband without manipulation

Front 60

Terry Frisk: NY rule on seizure

Back 60

Officers can sieze items ONLY if it reasonably appears to be a weapon

Front 61

Traffic Stop Car Frisks: When permissible

Back 61

If an officer beleieves that a suspect is dangerous, he MAY search the passenger cabin of the suspects vehicle, in those areas in which a weapon may be placed or hidden

Front 62

Protective Sweeps: Rule

Back 62

When making an inhome arrest, police may sweep the residence to look for criminal confederates of the arestee whose presence may threaten officer safety

Front 63

Terry Stops and Frisks: Evidentiary Standard

Back 63

Reasonable Suspiscion (less than probable cause)

Front 64

Terry Stop Reasonable Suspicion: Defined

Back 64

Requires a specific and articulable facts that inform an officers belief that criminal activity is present. Subjective intent is irrelevant in evaluation the legality of the stop

Front 65

Terry Frisk Reasonable Suspicion Defined

Back 65

Requries specific and articulable facts that a suspect is aremd and dangerous. Justified ONLY out of a concern for officer safety

Front 66

Protective Sweeps: Evidentiary Standards

Back 66

1) Officers do not need reasonable suspicion or probable cuase to look in areas adjoining the place of arrest from which an attack could be immediately launched

2) To sweep more remote areas, officers must have additionals facts to allow the conclusion that an individual who may threaten their safety is present

Front 67

Exclusionary Rule:

Back 67

Evidence, either phsyical 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.

Front 68

Exclusionary Rule: Impeachment exception

Back 68

Unconstitutionally obatined evidence is excluded from teh case in chief, but may be used to impeach a defendants testimony on cross examination

Front 69

Exclusionary Rule: Knock and Announece Violations

Back 69

A failure to comply with the knock and announce rule does nto require supression of evidence

Front 70

Exlusionary Rule: When triggered by police error

Back 70

The police conduct must be deliberate, reckless, or grossly negligent

Front 71

Exclusionary Rule: Officer Mistake

Back 71

Exlusionary rule does not apply to evidence obtained erroneously when executing a search warrant, provided an officer's mistake was reasonable

Front 72

Fruit of the Poisonous Tree Doctrine:

Back 72

Evidence obatined as a consequence of exploiting prior unconstitutional conduct (i.e. unlawfully obtained confessions) is inadmissible as well.

Front 73

Nullifying Fruit of the Poisonous tree: 3 ways

Back 73

1) Independent Source - distinct from the illegality that leads to evidence

2) Inevitable Discovery

3) Attenuation - where passage of time and intervening evidence purge the taint of the illegality

Front 74

WireTapping: four requirements

Back 74

1) Warrant must name the suspected persons

2) Must be for a strictly limtied time period (30 days in NY)

3) Must be probable cuase that a specific crime has been committed

4) Warrant must describe with particularity the conversations that can be overheard

Front 75

Eavesdropping rule

Back 75

If you speak to another party who has consented to havign the conversation recorded, you have no fourth amendment claim - you assume that risk

Front 76

Arrests: When occur

Back 76

When the police take you into custody against your will for prosecution or interrogation

Front 77

De Facto Arrests: defined

Back 77

Occurs when the police compel an individual to come to the station of questioning or fingerprinting

Front 78

Arrest Warrant: Public Place

Back 78

Not needed

Front 79

Arrest Warrant: Your home

Back 79

Needed

Front 80

Warrant: Third persons home

Back 80

Absent an emergency, police need both arrest and search warrant