Search & Seizure

Front 1

Search & Seizure Analysis

Back 1

1. Conduct?
2. Standing?
3. Warrant?
4. Exceptions?
5. Due Process?
5. Exclusion?

Front 2

Arrest—Elements

Back 2

(a) a restraint on liberty;
(b) imposed by a government actor;
(c) through physical force or show of authority;
(d) and to which the suspect submits.

Requires 'probable cause'—that is, a showing of facts and circumstances that would justify a fair‐minded person of average intelligence in believing that the suspect committed a felony.

Front 3

Search—Elements

Back 3

(a) a government intrusion upon;
(b) a subjective expectation of privacy;
(c) that society is prepared to recognize as reasonable

Front 4

Investigative Detention—Elements

Back 4

(a) under the totality of the circumstances;
(b) a reasonable person would not feel free to (i) decline the officer’s requests; or (ii) otherwise terminate the encounter.

Front 5

Investigative Detention—Probative Factors

Back 5

(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person;
(4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Front 6

Seizure of Property—Elements

Back 6

(a) a meaningful interference with
(b) an individual’s possessory interest in the property.

Front 7

Search & Seizure Analysis—Standing

Back 7

The defendant must show either

(1) a physical intrusion into a constitutionally protected area (e.g., the curtilage of the home); or

(2) a subjective expectation of privacy, in the object of the search or seizure, that society recognizes as reasonable.

Front 8

Expectation of Privacy in Dwelling

Back 8

Extends to the curtilage and the appurtenant structures therein.

Front 9

Curtilage & Open Fields

Back 9

In determining whether an area is within the curtilage of a dwelling, a court will consider four factors:

(1) the proximity of the area to the home;
(2) whether the area is within an enclosure surrounding the home;
(3) the nature of the uses to which the area is put;
(4) the steps taken by the resident to protect it from observation by passers-by.

Front 10

Search & Seizure Analysis—Warrant Requirements

Back 10

1. Neutral & Detached Magistrate
2. Probable Cause
3. Particularity
4. Proper Execution
5. Good Faith Exception

Front 11

Warrant—Probable Cause

Back 11

(1) based on the totality of the circumstances;
(2) there is a ‘substantial basis’;
(3) for inferring a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place.

Front 12

Warrant—Probable Cause—Tips (Federal)

Back 12

Issuing magistrate must consider:
(1) the reliability of the informant; and
(2) the basis of the knowledge asserted.
Neither factor controls. If reliability is unknown, corroboration of affirmative allegations may give rise to an inference of personal knowledge.

Front 13

Warrant—Particularity

Back 13

To satisfy the particularity requirement, the search warrant must specify:
(1) the place to be searched; and
(2) the items to be seized.

Front 14

Warrant—Good Faith Exception

Back 14

Requires 'objectively reasonable reliance’ on the subsequently invalidated warrant. The question is whether a reasonably well trained officer would have known the search was illegal in light of all the circumstances.

Front 15

Warrant—Execution

Back 15

A warrant's execution must (1) comply with its terms and limitations; and (2) comport with the 'knock & announce' rule.

Front 16

Warrant—Execution—Knock & Announce Rule

Back 16

The knock and announce statute requires that police executing a search warrant
(1) give notice of their authority and purpose; and
(2) be refused entry before forcing their way in.

Police need not knock and announce if there is a reasonable suspicion that compliance would be
(1) dangerous or futile; or
(2) that it would inhibit the effective investigation of the crime (by, e.g., allowing the destruction of evidence).

Front 17

Search & Seizure Analysis—Warrant Exceptions

Back 17

ESCAPIST
(1) Exigent Circumstances;
(2) Search Incident to Arrest
(3) Consent
(4) Automobile Exception
(5) Plain View
(6) Inventory Searches
(7) Special Needs
(8) Terry Stops

Front 18

Search & Seizure Analysis—Warrant Exceptions—Exigent Circumstances

Back 18

The state must demonstrate specific and objective facts that indicate a reasonable possibility that evidence would be destroyed or removed in the time necessary to get a warrant.

HOT PURSUIT
A warrantless entry of a dwelling may be justified where police are in hot pursuit of a fleeing felon.

COMMUNITY CARETAKER
As part of her role as a ‘community caretaker’, an officer may enter a dwelling without a warrant there is an objectively reasonable basis for believing that a person inside requires medical assistance.

Front 19

Search & Seizure Analysis—Warrant Exceptions—Search Incident to Arrest

Back 19

Police may search the person of a suspect under lawful arrest, as well as the area within his immediate control, so long as the search is contemporaneous with the arrest. The exception operates to (1) ensure the safety of the arresting officers; and (2) preserve evidence.

Police may also conduct an incidental sweep of adjoining areas from which criminal confederates could launch an attack. The sweep must be strictly circumscribed to those areas where a person could be hidden, and any intrusion into more remote areas of the dwelling must be justified by additional facts that would allow a reasonably prudent officer to conclude that a dangerous individual was present in the area to be swept.

Front 20

Search & Seizure Analysis—Warrant Exceptions—Search Incident to Arrest (VEHICLES)

Back 20

If a driver or occupant of a vehicle is arrested, police may search the arrestee’s person and the area within her immediate control, including the passenger compartment, if:

(1) the arrestee is unsecured; or
(2) police have reason to believe that the vehicle contains evidence relevant to the crime of arrest.

The search may extend to closed containers within the passenger compartment if capable of containing a weapon or evidence of the relevant crime.

Front 21

Search & Seizure Analysis—Warrant Exceptions—Automobile Exception

Back 21

A vehicle is an ‘effect’ protected by the Fourth Amendment, but is susceptible to warrantless searches due to its ready mobility and the reduced expectation of privacy it provides to occupants.

If police have probable cause to believe a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the entirety of the vehicle, as well as any closed containers and passenger belongings that could reasonably contain the item for which there was probable cause to search.

Drivers and passengers may be temporarily detained during a vehicle search supported by probable cause. Police may also seize the vehicle and its contents for a reasonable time pending acquisition of a warrant.

Front 22

Search & Seizure Analysis—Warrant Exceptions—Automobile Exception—Canine Sniffs

Back 22

The question of whether a canine alert, standing alone, can give rise to probable cause should be evaluated on a case-by-case basis. If the state can produce evidence establishing the reliability of the alerting canine, it is proper to find that probable cause exists; if the defendant produces evidence to the contrary, the court should weigh the balance. The question is whether all the facts surrounding the alert would make a reasonably prudent person believe that a subsequent search would reveal contraband.

Front 23

Search & Seizure Analysis—Warrant Exceptions—Plain View

Back 23

The plain view doctrine allows police to seize evidence without a warrant if three requirements are met:

(1) the actor’s presence must be lawful under the Fourth Amendment;
(2) the incriminating nature of the item observed must be immediately apparent; and
(3) the actor must have a lawful right of access to the object itself.

Front 24

Search & Seizure Analysis—Warrant Exceptions—Inventory Searches

Back 24

At the police station, police may conduct an inventory of the arrestee’s vehicle and its contents, including closed containers therein, if

(1) conducted pursuant to established department procedure; and

(2) for good faith administrative purposes.

Front 25

Search & Seizure Analysis—Warrant Exceptions—Special Needs

Back 25

A warrant is not required where special needs justify limited and prescribed intrusions. Courts faced with an asserted ‘special need’ consider:

(1) the gravity of the public concern motivating the search or seizure; a
(2) the degree to which the seizure advances that concern; and
(3) the severity of the intrusion upon individual liberty.

Front 26

Search & Seizure Analysis—Warrant Exceptions—Special Needs—Checkpoints

Back 26

Certain checkpoints that fall within the role of police as ‘community caretakers’ may be permitted despite an individualized suspicion if

(1) the primary motive does not involve the detection of ordinary criminal wrongdoing (e.g., canine sniffs);

(2) the means are appropriately tailored to the need; and

(3) police are given minimal discretion as to who will be searched or detained.

Permissible purposes include ensuring safety by testing for sobriety or checking compliance with vehicle regulations; and seeking information to apprehend third parties (not the vehicle’s occpuants).

Front 27

Search & Seizure Analysis—Warrant Exceptions—Terry Stops: ANALYSIS

Back 27

1. Did a stop actually occur?
2. Did the defendant submit?
3. Was the stop supported by a reasonable suspicion?
4. Did the stop become an arrest?

Front 28

Search & Seizure Analysis—Warrant Exceptions—Terry Stops: Did a stop actually occur?

Back 28

Involuntariness will only be found if:

(1) under the totality of the circumstances;
(2) a reasonable person would not feel free to decline the officer’s requests; or otherwise terminate the encounter.

Where the nature of the interaction is unclear, courts will give special weight to:

(a) the threatening presence of several officers;
(b) the display of a weapon by an officer;
(3) any physical touching of the person; and
(4) the use of language or tone of voice indicating compliance may be compelled.

Front 29

Search & Seizure Analysis—Warrant Exceptions—Terry Stops: Was the stop supported by a reasonable suspicion?

Back 29

A reasonable suspicion is more than a hunch, but less than the level of suspicion required for probable cause. While the inquiry is based on commonsense judgments and inferences about human behavior, courts may also consider the officer’s experience. The subjective motivations of an officer are irrelevant so long as there existed objective data and articulable facts from which an inference of criminal activity could reasonably have arisen?

Front 30

Search & Seizure Analysis—Warrant Exceptions—Terry Stops: Anonymous Tips & Reasonable Suspicion

Back 30

An anonymous tip can give rise to reasonable suspicion where corroborated by the officer’s observations as considered in light of his experience. The details corroborated generally must be predictive, not merely descriptive. The primary question is whether the tip carries with it sufficient indicia of reliability to support a reasonable suspicion.

Front 31

Search & Seizure Analysis—Warrant Exceptions—Terry Stops: Frisks

Back 31

To justify a frisk incident to an investigative stop, an officer must have a reasonable suspicion that the suspect is armed and dangerous. The frisk must be limited to the outer layer of clothing, and while contraband revealed in the conduct of the frisk may be seized, its criminal nature must be immediately apparent—any manipulation or further investigation will generally be construed as a search requiring probable cause.

Front 32

Search & Seizure Analysis—Warrant Exceptions—Terry Stops: Frisks (VEHICLES)

Back 32

Where an officer has a reasonable suspicion that a suspect is armed and dangerous, she may require the occupants to exit and submit to a frisk where the requisite circumstances are met, and may also conduct a limited search of those areas of the vehicle’s passenger compartment capable of containing a weapon.

Front 33

Search & Seizure Analysis—Warrant Exceptions—Terry Stops: Did the 'stop' become an arrest?

Back 33

A stop must last only so long as it takes the officer to confirm or dispel their reasonable suspicion. Any extension of the detention will constitute an arrest absent a demonstration of objective data and articulable facts acquired during the course of the initial stop that were sufficient to provide a reasonable suspicion of additional criminal activity.
A stop must also be no more intrusive than reasonably necessary. Generally, movement of the suspect or her property will constitute a search or seizure unless done for the safety of the suspect or others. Florida v. Royer (stop becomes arrest where D moved to nearby room). Dunaway v. New York (arrest where defendant transported to station house).

Front 34

Search & Seizure Analysis—Exclusion—Defective Search Warrants (PROCEDURE)

Back 34

Where the defendant seeks to suppress evidence seized
pursuant to a search warrant, the defendant has the burden of proving the illegality of the search or seizure (generally by a preponderance of the evidence), and of establishing her standing to challenge the search.

Front 35

Search & Seizure Analysis—Exclusion—Warrantless Searches (PROCEDURE)

Back 35

Where the defendant seeks to suppress evidence seized pursuant to a warrantless search and seizure, the burden of proof is on the prosecution to show that the search and seizure were reasonable and
fell under a recognized exception to the warrant requirement.

The defendant retains the burden of establishing standing.

Front 36

Search & Seizure Analysis—Exclusion—Independent Source

Back 36

The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation (e.g. where a warrant contained sufficient facts to establish probable cause once excised of the offending portion).

Front 37

Search & Seizure Analysis—Exclusion—Inevitable Discovery

Back 37

The inevitable discovery exception permits the admission of tainted evidence when the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been revealed in the absence of police misconduct.

Note: Michigan does not allow the mere existence of probable cause sufficient to obtain a warrant to provide the basis for inevitable discovery.

Front 38

Search & Seizure Analysis—Exclusion—Attenuation

Back 38

Three factors to consider in determining “‘whether the causal chain has been sufficiently attenuated to dissipate the taint of illegal conduct:

(1) the time elapsed between the illegality and the acquisition of the evidence;
(2) the presence of the intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

Barring any egregious conduct on the part of the officers making the arrest, “discovery of an outstanding arrest warrant can dissipate or
attenuate the taint of an initial illegal stop or arrest.”

Front 39

Search & Seizure—Exclusion—ANALYSIS

Back 39

1. Inevitable Discovery
2. Independent Source
3. Attenuation

Front 40

Search & Seizure—Due Process

Back 40

Evidence acquired pursuant to an unlawful search and seizure will not be admissible if acquired pursuant to conduct so egregious that it 'shocks the conscience'.

Front 41

Search & Seizure Analysis—Warrant Exceptions: Consent (MI)

Back 41

Effective January 9, 2013, a parolee must provide written consent to submit to a search of his or her person or property upon demand by a peace officer or parole officer before being released on parole.” However, the statute provides that this consent will be inapplicable to searches conducted with the sole intent to intimidate or harass.

Front 42

Search & Seizure—School Searches

Back 42

School officials may search a student or a student's property on school grounds if they have a reasonable suspicion.

Front 43

Search & Seizure—Probable Cause to Arrest

Back 43

Probable cause to arrest exists where the facts and circumstances within an officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed

Front 44

Open Fields

Back 44

Police may conduct a warrantless search of an open field, which is defined to include any occupied or unoccupied area outside of a dwelling’s curtilage. A putative ‘open field’ need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.

Front 45

Search & Seizure—Warrants: Tips (Michigan

Back 45

Michigan employs a statutory test for anonymous tips, whereby the warrant affidavit must contain:

(1) underlying circumstances evidencing the informant’s basis of knowledge; and
(2) facts establishing either the veracity or reliability of the informant;
(3) such that it provides a ‘substantial basis’ for inferring a ‘fair probability’ that contraband or evidence of a crime will be found.