Search And Seizure

Front 1

Search is presumptively invalid without:

Back 1

Warrant

Affidavit alleging probable cause

Front 2

Probable Cause

Back 2

NOT a mere "hunch"

NOT based on hypertechnical facts

NOT demonstrable certainty (you don't have to be right)

Reasonable likelihood based upon known facts

Front 3

Exclusionary Rule

Back 3

Able to suppress evidence

Front 4

Sufficiency of Warrants

Back 4

The affidavit must supply a "sufficient nexus" between the following:

• criminal activity
• things to be seized
• place to be searched
  

Front 5

Particularity

Back 5

Groh v. Ramirez (US S.Ct. 2004)

Groh - ATF Agent

Ramirez - Montana Militia

Groh messed up and made a typo in the part of the search warrant where he was supposed to put what the search was for

• search warrant failed to identify any of the items to be seized on a Montana ranch (weapons & explosives)
• separate affidavit provided detailed description of the type of evidence sought
• valid search?
  

Front 6

LINK between criminal activity and place to be searched

Back 6

circumstantial evidence, reasonable inferences, sufficient connection

Front 7

Time - does PC exist at the time of the search

Back 7

Time lapse between information and issuance of the warrant may render the warrant stale

Contrast - ongoing criminal activity described in the warrant

Front 8

Good Faith Exception

Back 8

Exclusionary rule does not apply when police act in good faith reliance on a defective search warrant

However, no good faith where:

• affidavit lacking in PC
• magistrate "wholly abandons role"
• warrant deficient on face
• false statement or reckless disregard of truth
  

Front 9

"No Knock Warrants"

Back 9

Permissible where there is an objectively reasonable suspicion of the following:

• danger
• destruction of evidence
• futility - ?

Warrant must state specific facts

Front 10

Critical inquiries for "no knock"

Back 10

• do you anticipate "forced entry"

• what is the objectively reasonable suspicion of danger or destruction of evidence

• does the search involve evidence of a felony
  

Front 11

Exceptions to the Search Warrant Requirement

(4)

Back 11

• search incident to arrest
• vehicle search
  
• exigent circumstances
• consent
  

Front 12

Search incident to arrest

Back 12

• lawful arrest
• search contemporaneous with arrest
• area searched must be within suspect's "immediate control" or "grab area"

Front 13

What may be searched upon arrest

Back 13

Room or open area:

• person arrested
• immediate area (may be extensive, e.g., motel)

Not limited to pat-down search

Automobile:

• person arrested
• passenger compartment
• contents or containers
• only if:
• arrestee has right of access at time of search
• vehicle contains evidence of offense of arrest
  
  

Front 14

Area of suspect's "immediate control" may be searched

Back 14

search must be contemporaneous or immediately following arrest

justified in order to:

• remove weapons (officer safety)
• prevent destruction of evidence
  

Front 15

Automobile Search

Back 15

• Must have PC (RAS) to believe vehicle contains evidence of crime, PC=RAS (Reasonable Articulable Suspicion)
  
• Entire passenger compartment and containers therein may be searched for the item
• Includes trunk area
• Don't confuse search incident to arrest or search for weapons

- search incident to arrest only extends to passenger compartment

- need PC/RAS for trunk search

Front 16

Exigent Circumstances

Back 16

• Hot pursuit
• Destruction of evidence
• Emergency aid
• Inventory search

Front 17

Hot Pursuit of a suspect police may:

Back 17

• Enter a specific residence identified by either tip or chase
• Search for weapons suspect may have collected while at large
  

Front 18

Destruction of Evidence

Back 18

• Requires: "reasonable suspicion that relevant evidence is in imminent danger of being destroyed"
• contraband must be substantial likelihood of removal or destruction
• mere fact that evidence is of a type that can be easily destroyed is insufficient
• people v. Mendez (Colo. 1999)
  

Front 19

Emergency Aid

Back 19

"colorable claim" of emergency threatening life or safety of another

• must have reasonable basis to associate emergency with area or place searched
• primary purpose for entering

Must be more than "theoretical possibility" of emergency

Front 20

Emergency Aid requirements

Back 20

• Immediate crisis

People v Allison (Colo. 2004)

• Probability that police assistance would be helpful

People v. Pate (Colo. 2003)

People v. Kluhsman (Colo. 1999)

Front 21

Inventory Search

Back 21

• search of auto upon impound
• extends to closed containers
  
• includes trunk
• must be standards policy, NOT discretionary
  

Front 22

Consent

Back 22

• must be freely and voluntarily given; viewed under totality of circumstances, requires knowing waiver
• person must have authority or reasonable appear to have the authority to consent
• search must be within scope of consent
  

Front 23

Scope of Consent

Back 23

• casual observation "do you mind if I look around?" (People v. Thiret [Colorado. 1984])
• specific search: "do you mind if I take a look in your purse? (People v. Olivas [Colo. 1983])
• containers
  

Front 24

Consent from 3rd party - does the person have authority over the premises?

Back 24

Common authority

Apparent authority

Front 25

Common Authority

Back 25

property jointly owned and mutually used

either owner may reasonably permit inspection

others assume that one of the joint owners may permit the area to be searched

Examples: who pays the bills (people v. White [Colo. App. 2002]), resident v. caretaker v. owner (Peterson v. People [Colo. 1997]; People v. Mckinestry [Colo. 1993])

Front 26

Apparent authority - no authority at all

Back 26

police must reasonably believe that a third person has common authority over premises

belief must be fact-based and objectively reasonable

must look to surrounding circumstances and make inquiry

Front 27

What if one co-occupant refuses search?

Back 27

search is not justified over express refusal of occupant physically present Georgie v. Randolph (USSC 2006)

Front 28

Plain-view Doctrine

Back 28

considered "extension" of valid search

requirements:

- officer must be lawfully on premises

- incriminating object must be immediately apparent

- officer must have lawful right of access

Front 29

Protective Sweep

Back 29

must have specific and articulable fact that area to be swept harbors an individual posing a danger to those on scene

differs from "investigatory stop"

purpose: find persons hidden who may threaten officer's safety

Front 30

Standing (expectation of privacy)

Back 30

the individual (challenging the search) must have an actual expectation of privacy in the property that is the subject of the seizure

society must recognize the expectation as reasonable

Front 31

No reasonable expectation of privacy:

Back 31

• abandoned items
• observations from lawful vantage points
• open fields beyond "curtilage"
• prison cell
• phone records
• temporary visitor (not overnight)
  

Front 32

Privacy in the curtilage? Factors to consider:

Back 32

• proximity of area to home
• fence
• nature and uses of area
• protection from observation
  

Front 33

3 categories of police / citizen contacts:

Back 33

• consensual encounter - 4th amendment does not apply
  
• investigatory stop
• arrest
  

Front 34

Consensual Contact

Back 34

• request for voluntary cooperation
• informal and conversational tone
• requests rather than demands
• no physical restraint or impediment

Front 35

What if a person feels like they will be arrested if they refuse to cooperate?

Back 35

inherent social pressure does not make encounter non-consensual

police need not tell citizen he is free to leave

Front 36

Deciding question:

Back 36

would a reasonable person under the circumstances believe that he or she was free to leave and/or disregard the official's request for information

facts and circumstances determine this

Front 37

Commons sense understanding

Back 37

did the officer engage in conduct that an ordinary person would view as threatening or offensive if performed by another private citizen?

Front 38

"knock and talk"

Back 38

location is a relevant factor

officer's intent-relevant?

- only if communicated to the individual

Front 39

The "fine line"

Back 39

• pursuing a person after the person terminated contact
• calling out to the person to stop or "halt"
• holding a person's property (ID)
• blocking a person's path
• physically grabbing a person
• surrounding a person
  

Front 40

Investigatory Stop

Back 40

must be "reasonable articulable suspicion" that suspect is involved in criminal activity

purpose of detention must be reasonable

scope of detention must be tailored to its purpose

Front 41

Reasonable articulable suspicion

Back 41

suspicion based upon the totality of facts known to the officer

considered in the context of the officer’s special training and experience

officer may draw upon inferences and deductions from the observations

Front 42

Primary purpose of stop

Back 42

to determine an individual's identity and explanation of behavior through reasonable questioning

Front 43

Scope of detention

Back 43

reasonableness depends on circumstances

use of force

- handcuffs

- weapons drawn

Front 44

The "dissipating" purpose of the stop

Back 44

look to the initial justification for the stop

- People v. Reddinger (Colo. 1995)

is there a continuing violation?

- People v. Altman (Colo. 1977)

what if officer decides not to issue citation?

- People v. Ramos (Colo. 2002)

Front 45

Transforms into consensual encounter

Back 45

purpose of stop accomplished and no further reasonable suspicion exists

would a reasonable person feel free to leave or disregard request for information?

apply "fine line" factors

Front 46

"furtive gestures"

Back 46

too ambiguous alone to constitute the basis for an investigatory stop

BUT combined with other objective facts may give rise to investigatory stop

Front 47

Protective search for weapons

Back 47

police may conduct pat-down search for weapons during investigatory stop

musthave reasonable belief suspect armed and dangerous

• mustbe limited in scope
  
• includessearch of car (passenger area)

Front 48

Fleeing from police

Back 48

if aperson gives chase to police, is he considered “seized”within the meaning of the 4th Amendment?

NO!seizure only occurs where:

personis physically brought within control of police or

whenperson yields to authority of policesowhat about evidence the suspect tosses during flight?

Peoplev. McClain (Colo. 2007)

Front 49

Incidental contacts with drivers and passengers

Back 49

passengeris “seized” intraffic stop of driver

however

passengersmay be ordered to get out and separate from one another pending completion ofthe stop without individualized suspicion

Front 50

Anonymous tiptser

Back 50

mustprovide reliable information regarding identification as well as details thatsupport an inference of criminal behavior

detailsof predictive behavior help establish that reliability

Front 51

Arrest

Back 51

Plain-view always applies

Front 52

Arrest of suspect inside home of third party

Back 52

musthave arrest warrant AND search warrant

if nosearch warrant, must have reasonable basis to conclude:

- thesuspect lives in the residence AND

- thesuspect is present at the time the search is conducted

Front 53

Where does PC come from?

Back 53

policeofficer observation

- fellowofficer rule

identifiablewitnesses

- presumedreliable

anonymoustips

- mustbe verified