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116 Cards in this Set

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Challenging Search Warrants - two ways:
1. On the FACE - facts as set out cannot establish PC
2. Going BEHIND the affidavit - FRANKS hearing - some or all averrments at least recklessly false and the redacted affidavit does not establish PC.
Probable Cause Test - for ARREST WARRANT
is there a "fair probability" under the "totality of the circumstances" that, (a) a crime has been committed; and (b) the person to be arrested committed the crime?
Probable Cause Test - for SEARCH WARRANT
is there "fair probability" under the "totality of the circumstances" that, (a) the items (to be seized) are evidence of criminal activity; and (b) the items are presently located at the specified place - PARTICULARITY REQUIREMENT
Expectation of Privacy - KATZ
Is there (a) reasonable expectation of privacy, (b)has the person exhibited a subjective expectation of privacy; and (c) is that expectation one that society is prepared to recognize as reasonable? PHONE BOOTH CASE - you can be protected form the uninvited ear but if the uninvited ear is invited (an informant w/ a wire) you are not protected
NO E of P - Misplaced Trust Doctrine - U.S. v. White
If you tell a confederate a secret, you have no expectation of privacy that they won't narc on you.
NO E of P - Open Fields Doctrine - Oliver v. U.S.
Generally, if the public could see it on your property - or w/out extraordinary means - it's fair game for the police to see
No E of P - Public Access to Private Material - CA v. Greenwood
Trash case - D gave his trash over to the curb - therefore open to anyone - police do not have to avert their eyes to the trash
No E of P - When Only Illegal activity can be detected - U.S. v. Place
Dog sniff case - can only point out drugs/no drugs, drugs are illegal, therefore there is no E of P associated with the carrying of them. The minute they are detected, police have PC and may search/seize.
Expectation of Privacy Cases - BOND
BOND - squeezing luggage - any way of gaining info considered a search - outside security checkpoint
Expectation of Privacy Cases - KYLLO (2001)
Taking temp of exterior of a home - there are private facts that can be detected that police should not have access to - a specially protected place
Expectation of Privacy Cases - KARO (1984)
Police can stick a beeper on a car in public - they cannot gain info about the car where they otherwise wouldn't be able to - can't turn beeper on when in a garage
Searches Incident to Arrest
Scope - area of arrestee's "immediate control." If arrested in car - includes entire passenger compartment including locked glove box.
Automobile Search
Police may make a warrantless search of a car anytime they have PC to believe it contain E of a crime; Police may search closed containers w/in a car;
Trunk of a Car
P may not search unless there is reason to believe an item for which they have PC is there - PC follows the item.
Inventory Search of Car
P may do this but it must be (1) routine; and (2) limits officers' discretion
Terry Stop - defined
A brief detention justified by REASONABLE SUSPICION (crime is afoot and stopee is involved) for questioning that does nto convey that one will have one's freedom of movement controlled for an indefinite period (aka arrest)
Terry Frisk - defined
A 'pat down' of outer surfaces of clothing to determine whether suspect has weapons - cannot reach inside pockets - NOT A FULL BLOWN SEARCH - Reasonable Suspicion - stopee is armed (initial stop must be valid) - frisk flows from the STOP.
Confessions - Fifth Amendment Self-Incrimination Clause
Text: No person shall be compelled in any criminal case to be a witness against himself

Test: Was there (1) custody and (2) interrogation?
Custody - defined
Would a reasonable person in the suspect's situation feel they were not free to terminate the encounter to the degree of formal arrest?
Interrogation - defined
Did the police use words or actions, other than those normally attendant to arrest and custody they should have known were reasonably likely to elicit an incriminating response?
Miranda Warnings - list
(1) Right to remain silent;
(2) Anything you say may be used against you in court;
(3) You ahve a right to have counsel present during interrogation;
(4) If you cannot afford an attorney, one will be appointed for you.
Sixth Amendment Right to Counsel
Text - in all criminal prosecutions, the accused shall enjoy the right to...the Assistance of Counsel for his defense
Test: did police deliberately elicit statements in the absence of counsel on a matter where D has been charged?
Fifth v. Sixth A right to attorney
Fifth - kicks in at the interrogation stage as to everything.

Sixth - while you are defending yourself on a particular charge - meaning you can be asked about something that isn't related to the charge.
Fourteenth Amendment Due Process
Was the confession 'voluntary?'
*Actions of Police (violence, exhaustion, etc.
*Personality of subject (special susceptibility);
*Surrounding circumstances
Is there ever reason to racial profile?
(1) Efficiency of search - 100% of all terrorist attacks by air have been done by Arab nationals
(2)Magnitude of the harm - if we miss someone we are going to have another 9/11
(3)How much are you willing to pay for civil liberties - crime oriented v. due process
The Exclusionary Rule - defined
E collected or analyzed in violation of the U.S. Constitution is inadmissible for a criminal prosecution in a court of law
The Exclusionary Rule - Mapp v. Ohio (1961)
All E obtained by searches and seizures in violation of the C is inadmissible in a state court
The Exclusionary Rule - U.S. v. Leon (1984) - the Good Faith Exclusion
The Remedy Modified - E obtained by officers acting in REASONABLE RELIANCE on a search warrant issued by a detached and neutral magistrate but ultimately found unsupported by PC is ALLOWED - unless there was police illegality
When the Good Faith Exclusion does NOT apply
(1)A must not include illegally obtained or knowingly or recklessly false info;
(2) Magistrate cannot have abandoned neutral and detached role;
(3) Affidavit cannot obviously lack indicia of PC;
(4) Warrant cannot be facially deficient in form;
(5) Searchers cannot rely on facially valid warrant where initial acquisition was illegitimate - first person lied to M and warrant on face looks legit - gives to second person - even if he acts in good faith - cannot pass this off;
(6)Searchers cannot exceed scope of warrant
Hudson v. Michigan (2006) - KNOCK AND ANNOUNCE
Reversal of "knock and announce" in part - whether Ex Rule should apply to K and A violations.
*Comes down to deterrence of P action and it doesn't here - You don't have to wait if you have reasonable suspicion S will destroy E or there is danger to the P
*Danger to officers of being wrong about whether they should have gone in
Reilly Protected Area Approach
There is a continuum from the open fields (no protection) to the curtilage (may be protected - fact sensitive) to the home (almost always protected).
KATZ TEST
1. Whether he had a subjective expectation of privacy in the place where the search took place, and 2. Whether the society is ready to accept this expectation as reasonable.
KYLLO (2001) TEST - heat sensing case - CURRENT TEST
(1)Were senses enhanced?
(2)Was info related to interior of home?
(3)Was info otherwise unobtainable w/out physical intrusion into a constitutionally protected area?
(4) was the technology not in general public use?
Difference between KATZ and KYLLO
Whether expectation is reasonable enough to balance police and suspect's expectation of privacy - protected area type of privacy as long as you can w/in that protected area show that there is some sort of expectation of privacy
U.S. v. Place (1984) - dog sniff case
Katz analysis - a K9 sniff tells officers of absence or presence of narcotics - nothing else about luggage - you have no E of P regarding contraband
Illinois v. Caballes (2005) - dog sniff of car during traffic stop
Allowed - did not become more of an intense intrusion and was not a search. The person must be otherwise lawfully stopped
Three Bases for Searching Someone
(1)Probable cause - full blown search;
(2)Reasonable suspicion - frisk
(3) Administrative basis - not clear what you can do here
U.S v. Johnson
Police lawfully find white powder in a pkg originally opened by others and do an on-the-spot chemical test - NOT A SEARCH
U.S. v. Knotts (1983)
Use of beeper to track bottle traveling in a car - NOT A SEARCH. Visual surveillance would have rendered the same info - but if it was a round the clock thing - Court might revisit
U.S. v. Karo (1984)
Exp of Knotts - car w/ beeper installed trans to 2nd owner - NOT a search or seizure as the unmonitored beeper did not infringe on privacy
Cell Phone Tracking
FCC mandated all cell phone calls need to be tracked to w/in a 125 meter diameter - so 911 can pinpoint where callers are calling from - could use of this tech become a search?
Dow Chemical Co. v. U.S. (1986)
Aerial photos of co's plant NOT 4th A search - photos not so intimate to raise C concerns - remains limited to outline of buildings in complex
Enclosed Space Detection System
Designed to detect presence of people hiding in enclosed places of cars by identifying heart beats - is this as limited as the sniff?
Emails
Transmitter has reasonable expectation that police will not intercept email sent, but once it is delivered to recipient, the transmitter no longer has control over the message.
MISPLACED TRUST DOCTRINE
When you give info to a third party and they choose to turn it over to police - it is a risk you take in doing so
Spinelli v. U.S. (1969) - Basis of Knowledge and Veracity
Two-pronged test for Search Warrants:
(1)The magistrate must be informed of the reasons to support the conclusion that such an informant is reliable and credible.
(2)The magistrate must be informed of some of the underlying circumstances relied on by the person providing the information
Analysis of Aguilar/Spinelli Test
(1)Does the I's report establish (a) the basis of the I's knowledge and (b) either her credibility or reliability of her info?
(2)If not, does the tip as corroborated establish (a) basis of the I's knowledge and (b) either her credibility or the reliability of her knowledge?
(3) If not, is the info so detailed that it establishes (a) basis of I's knowledge; and (b) her credibility or reliability of her knowledge?
Draper case
When the I's info
Illinois v. Gates - TOTALITY OF THE CIRCUMSTANCES APPROACH
So long as a magistrate has a substantial basis for concluding that a search would uncover E of wrongdoing, the 4th A requires no more. Veracity and basis of knowledge are closely intertwined issues - the A/S test has become too technical and rigid
TOTALITY OF THE CIRCUMSTANCES APPROACH CONTINUED
Common sense approach should be used - should be fluid - a deficiency in one may be compensated for by a strong showing as to the other or by some other indicia of reliability. Lay people must make these determinations.
Post-Gates - Probable Cause
Under the Totality of the Circumstances, is it a fair probability that a crime has or will be committed?
Review of PC cases
Judicial Role:
-Initial Determination
-May make non-tech, common-sense judgments
-reviewing court - substantial basis
-not de novo
-was there a substantial basis for initial finding of PC?
-Deference paid to initial finding.
MA v. Upton (1984)
Explanatory case showing how A/S does not work but under Gates - the T of C test does
Ambiguity of Time
If we don't know when something is going to happen or when something was observed - there is no reason to believe there is a fair probability something will be found now or the S is committing a crime now.
Ambiguity of Present Location of the Evidence
What is the likelihood an object would be moved over the course of the intervening time stated? Is it likely to stay b/c it is hard to move or likely to go b/c of the notoriousness of the crime?
Warrantless Arrests and Searches - defined
Require PC as well but certain kinds do not as they involve a lesser degree of intrusion or interference and are permitted on less than PC
ORAL SUPPORT for Warrant Issuance
Warrants need not be solely supported by writing - even though this is preferred for future review.
-Warrants may not be cured by oral testitmony given after the fact when this info was know at the time of warrant issuance and NOT shared with the magistrate
Probable Cause to ARREST
Must be SUBSTANTIAL PROBABILITY that a crime has been committed and the person to be arrested committed it.
Probable Cause to SEARCH
Must be SUBSTANTIAL PROBABILITY that certain items are the fruits, instrumentalities or evidence of a crime and are to be found at a certain place. Time cannot be STALE and a SUFFICIENT CONNECTION between place and items
CHALLENGING A WARRANT - Franks v. Delaware
Where a D makes a SUBSTANTIAL PRELIMINARY SHOWING that a false stmt knowingly and intentionally, or w/ reckless disregard for the truth was included in a warrant A and if the false stmt is necessary to the finding of PC, the 4th A requires a hearing to be held at D's request. If established by PREPONDERANCE OF THE EVIDENCE and A's remaining content is insufficient to est PC, the warrant must be VODED and the search excluded.
Informer's Privilege/Informant Disclosure
Officers need not e required to disclose an informant's identity if the judge is convinced by E submitted in court and subject to x-exam that the P relied in good faith upon credible information supplied by a reliable informant
Other Sources of Probable Cause
(1) Info from alleged victim of, or witness to, a crime - prior reliability does not factor in;
(2) Direct observations by P - most troublesome b/c of chance of embellishment;
(3) Info and orders from official channels - P made arrest after hearing on radio that warrants had issued - later warrants proved to be false - arrest cannot be shielded from illegality of the act - but if it was valid it would be fine.
What is needed for a SEARCH warrant to issue?
(1)Neutral and Detached Magistrate
(2)Particular desc. of place to be searched;
(3)Particular desc. of things to be seized;
(4)Particular desc, reliance on affidavit;
(5)Neutrality, particularity, and good faith
Execution of Warrants - TIME
Generally w/in 10 days
Sneak and Peek Search Warrants
P may enter, look around, and leave w/out touching anything.
Knock and Announce (possibly invalidated by Hudson - "exclusionary rule does not apply")
May be waived when the P have (1) REASONABLE SUSPICION that doing so would be (2) DANGEROUS or (3) FUTILE, or inhibit investigation b/c of ease of destruction of E.
Plain View Doctrine
Items not listed in warrant may be seized when an officer is legitimately in a place (dictated by warrant); and sees items immediately identifiable as contraband or E of a particular crime
Plain View Doctrine for Computers
Once you stumble upon something that looks like contraband - then you can continue to look at it - as long as you were where you were supposed to be when coming across it.
U.S. v. Banks (2003)-how long of a wait before police can enter
Absent exigent circumstances, whether police feel person has had time to get to the door and therefore has refused entrance.
U.S. v. Watson - postal officer makes warrantless arrest
Postal officers have authority to arrest so long as there is PC - this is NOT a warrant exception here.
Probable Cause as Objective Judgment
4th A does not generally require anything that was in the officer's head, but only to impose a neutral observer of the FACTS themselves.
Atwater v. City of Lago Vista (2001)
D arrested for not wearing seatbelt or locking up her kid - statute said you could issue a citation or arrest. They arrest - you can arrest for a misdemeanor in the police's presence w/out a breach of peace.
Tennessee v. Garner - Death By Seizure
Courts won't look behind P decisions - so long as they are being broadly reasonable - you generally may not shoot someone to death to keep them from escaping.
Warrantless Search - U.S. v. Robinson
P pulls someone over, pats him down, feels object, reaches in and takes it out - cigarette packet. He opens the packet and finds heroin. Is this valid? YES - so long as he has PC to arrest b/c of the stop - he may do a full blown search incident to arrest
SILA - why allowed?
(1)P safety; and
(2)E preservation
~doesn't have to be proven
~to arrest you need PC and therefore you can intrude upon them - no greater an intrusion than the arrest
Scope of SILA - where/how much
In home - limited to one room - so long as there is a justification to make arrest in the first place.
Outside - generally a wingspan - close proximity to the person
For Cars - everything but the trunk
SILA - when arrest found to be unlawful
the full search will be most likely out - UNLESS it was just a Terry pat and officer felt a weapon and reached in to retrieve - this will probably be upheld
Whren v. US - (1996) IMPORTANT CASE - understand this and understand the 4th A (unanimous decision)
Only PC needed to make a minor traffic stop - police will ALWAYS have option of finding a minor traffic violation on someone - leads to possibility of PRETEXT to something else. The 4th A triggers w/ the decision to stop
If your action is a search and the justification is REASONABLENESS, you are worried about pretext.

on the other hand...
If the action is a search and the justification is PC, you don't need to worry about the state of mind of the officer.
Should there be reasonableness balancing for 4th A cases?
NO - you get reasonableness balancing once police show PC - the privacy issue is then outweighed by PC - if police have PC, they get to do anything except make extraordinary intrusions.
Extraordinary cases for Reasonableness balancing and 4th A:
Garner - seizure by death;
Warrantless entry into home;
Bodily intrusions; and
Unannounced entry - maybe (see Hudson)
Elaborations on When/How Police May Search - U.S. v. Edwards (1974)
Once D arrested and in custody, his effects at the place of detention that were subject to search may be searched at a later time w/out a warrant even though a substantial period passed. Must be connected to crime-PC and must not violate dictates of reason.
Elaborations on When/How Police May Search - Knowles v. Iowa
If you terminate an encounter by issuing a citation rather than arrest, you lose your SILA powers - if you choose to search first and then decide not to arrest - these SILA powers are preserved
Limits on SILA - Chimel v. CA (1969)
P had ARREST warrant - wife let them in home to arrest - when D came home, police do a full blown search on whole house - NOT ALLOWED - only extension to the area considered to be in the "possession" or under the "control" of arrestee
IMMEDIATE CONTROL TEST
Where the arrestee will have the ability to destroy evidence or get a weapon - not the basement, attic, upstairs bedroom - what is in IMMEDIATE CONTROL if A breaks free?
PROTECTIVE SWEEP
Police may do so of entire house for their protection and to preserve E. If the E is in plain view they can keep it - but they cannot look inside things - sort of like a Terry frisk of a dwelling.
ASKING TO SEARCH
If Police ask to search and the D agrees - they MAY - and the 4th A is NOT in play here.
Securing of home until warrant issues:
ALLOWED - so that E cannot be destroyed in interim
Review - PROBABLE CAUSE TO ARREST
*Offense may be minor and rarely enforced (Whren, Atwater);
*Officer need not announce intent to arrest;
*BUT if officer chooses to issue citation, may not after conduct full blown search - Knowles
Review - SILA - GENERAL REQUIREMENTS
*PC to arrest;
*Search substantially contemporaneous w/ arrest
*Scope does not exceed "grabbable area"
Review - SILA - home or office
Factors of Search of Premises:
*Size of room, handcuffed, A's size and abilities, locked containers; and officer to suspect ratio
*P get to search one room generally - but if suspect must move after arrest, P may stay at his elbow.
Review - SILA - protective sweep
Done w/out further PC or reasonable suspicion - may only look where confederates could be found.
Ex. Look in closet and see rifle bag - now in Plain view doctrine and if there seems to be a rifle inside, P may open it. Could not open a duffel bag in the closet
Review - SEARCH OF PREMISES
*If arrest warrant executed outside home - NO home search - unless EXIGENT CIRCUMSTANCE.
*To enter home or office to arrest, must have arrest warrant and reason to believe suspect present
*Search warrant automatically gets you in home
Review - GENERAL EXIGENCY EXCEPTION
If no categorical exception - argue PC and Exigency (danger to P or others, risk of destruction of evidence, risk of suspect flight - hot pursuit).
Review - FURTHER EXIGENCY PRINCIPLES
*P need not witness crime - witness report or police bulletin will do
*Search of premises limited to (1) where S could be found; and (2)time substantially contemporaneous w/ exigency - once exigency ends - you must stop search
Review - MAY POLICE SEARCH UNDER PRETEXT?
YES - Whren - whe there is PC there will be no inquiry into P's subjective motivations - but seizures and searches by extraordinarily invasive manner may receive subjective analysis.
AUTOMOBILE EXCEPTION - Carroll v. US
Privacy interest in an auto are constitutionally protected, but the READY MOBILITY of the auto justifies a lesser degree of protection of these interests
EXPECTATION OF PRIVACY IN AUTO
there is a LESSER expectation of privacy w/ respect to one's auto than one's home or office - passenger compartment is open to plain view - the E of P flows from this. There is also pervasive regulations of cars capable of traveling on public highways
California v. Carney - mobile home warrantless search
ALLOWED - it is subject to Automobile Exception - readily mobile.
U.S v. Chadwick (1977) - footlocker search - luggage and other personal effects
Violated 4th A even though there was ample probable cause to believe it held contraband. Given higher level of privacy than cars - officers can seize and hold until they get a warrant - under this case you could open a trunk but not the luggage
Florida v. White (1999) - when car is the contraband P seek to secure
The car may fall under the auto exception - drug forfeiture - if the car is product of drug sales you can seize the car as you seize the person
Arkansas v. Sanders (1979) - extension of Chadwick (footlocker case)
Application of Chadwick Rule to apply to a suitcase actually being transported in the trunk of a taxi - warrantless search does not extend to the suitcase
U.S. v. Ross - (1982) PROBING SEARCH case - maybe overrules Chadwick
Closed containers in cars can be searched w/out a warrant b/c of their presence w/in the automobile. Auto Exception overwhelmed the Chadwick-Sanders exception
California v. Acevedo (1991) - bag of pot placed in trunk
*W/out a warrant the trunk can only be searched for the paper bag - but if something is in plain view during the search for the bag - fair game;
*Once bag is found - SEARCH MUST STOP;
*P cannot search any portion of the car that could not contain the object of the search
CA v. Acevedo - Continued
Any pkg found in a car can be searched under the Auto Exception - PC follows an item - if you know where it is - you no longer have any reason to be in the car - YES you can get inside a trunk
CA v. Acevedo - DISSENT
How can a privacy interest be diminished when the person takes it from PUBLIC view and puts it inside a privately owned auto?
Wyoming v. Houghton (1999) - individualized PC for items in car
When there is PC to search for contraband in a car, it is reasonable for police to examine packages and containers w/out showing INDIVIDUALIZED PC. Reduced expectation of privacy w/ regard to transport property in cars. PC to search car does NOT include bodily search.
TAKE YOUR PURSE
Breyer concurs stating a purse should receive special protection when it is ON THE PERSON - if it is left - the P will search it.
Ross Continued - two types of PC:
(1)Car is part of the crime or PC w/ regard to the driver - arrest and SILA (not the trunk); and
(2)PC to an object - if it goes into the car or trunk - distinguishes whether or not you can get to the trunk whether or not you have PC to an object or to the car itself.
Thorton v. US - passenger leaves car before stop
P puts D into custody then searches car - ALLOWED - danger to P flows from arrest and arrest of a suspect next to a car presents concerns re: safety and destruction of E.
Colorado v. Bertine (1987) - inventory searches
Inventory search of car after D was taken into custody and car was moved to impoundment lot is allowable (so long as routine) even when not conducted pursuant to warrant based upon PC
Terry STOP Test
When (1)a man of reasonable caution (2)would find facts specific to the suspect (3)that he could articulate (4)which taken together w/ rational inferences, justify suspecting the person is committing a crime or is about to do so.
Terry FRISK Test
A frisk requires that (a)the stop is valid and (b)a reasonable prudent man (c)granting due weight to specific reasonable inferences based on the officer's experience (d)would be warranted in believing the suspect is armed and dangerous.
Camera v. Municipal Court (1967) - official inspections
There are some types of 4th A intrusions that are REASONABLE even though they aren't based on PC - fire dept checking extinguishers - ADMINISTRATIVE SEARCH - not for criminal but regulatory purposes. BALANCE btwn govt legit interest v. privacy interest
Florida v. J.L. - black man at bus stop w/ gun tip
P find and frisk man after anonymous tip - must determine whether there was enough reasonable suspicion - from A/S test (sufficient reliability or basis of knowledge and veracity of the tip) - here NOT ENOUGH. Bare-boned tip might be overborne by EXTREME DANGER
U.S. v. Wardlow - cruisers in high crime area - person sees them and flees
Police catch up to S and do a pat and frisk of him and his bag - find a gun. Here, FLIGHT was significant - indication of nervousness