Criminal Procedure And Evidence: Search And Seizure, Lineup Law

Front 1

Evidence obtained as a result of unreasonable search or seizure cannot be used to prove a criminal defendant's guilt.

What constitutes a search?

Back 1

Search is any official action that intrudes upon a person's reasonable expectation of privacy.

Front 2

What are some police conduct NOT constituting a "search."

Back 2

Aerial surveillance of fenced yard

Examination of trash left in yard

Determining numbers dialed from
residential home ("pen register")

Using a 'beeper' to follow a car on public streets

Having a dog sniff luggage in an airport

Front 3

What are some examples of search?

Back 3

Rigorous squeezing of luggage in bus overhead rack

Thermal imaging scan of residence

Front 4

What is "plain view" doctrine?

Back 4

Officers merely exercise right to engage in 'plain view' and don't search if they:

Reach a location without violating the Fourth Amendment; and

Simply look at something in open view

Front 5

What is 'open fields' doctrine?

Back 5

Officers who go upon any unoccupied or undeveloped area of land not part of the 'curtilage' of a dwelling do not 'search.'

Curtilage is the area surrounding and used in connection with a residence.

Front 6

For a search to be reasonable, what 2 requirements?

Back 6

1) Must be pursuant to valid search warrant (but exceptions); and

2) Must be based on "probable cause."

Front 7

What is probable cause?

Back 7

Facts from which a reasonable person would conclude that there is a "fair probability" that seizable items will be found in the premises.

Front 8

What items are subject to seizure?

Back 8

1) Contraband (something illegal to possess);

2) Fruits of crime;

3) Instruments of crime;

4) Evidence that a crime was committed or that a particular person committed it ("mere evidence")

Front 9

Describe racial profiling (Texas Law).

Back 9

Texas provides by statute: "A peace officer may not engage in racial profiling."

Action based on an individual's race

Front 10

What is a search warrant?

What must it be issued on?

What must it describe?

Back 10

1) Judicial order authorizing search and seizure.

2) Warrant must be issued on information constituting "probable cause": affidavit must set out facts from which issuing magistrate can make independent judgment that probable cause exists.

Must describe specifically both:
1) Place to be searched;
2) Things to be searched for and seized.

Front 11

Before entering premises, officers must "knock and announce," and give occupants opportunity to admit the officers. "No knock" entry is permitted if officers have "reasonable suspicion" that occupants would __.

Back 11

1) Resist officers by using force; or

2) Remove or destroy items for which warrant issued.

Front 12

What must a search be limited to (warrant controls)?

Back 12

1) Premises described; and

2) Within that place, those locations where items to be seized might reasonably be expected to be located.

Front 13

What can an officer seize?

Back 13

1) Items reasonably believed to be those described; and

2) Other items found in "plain view" during search if probable cause exists to believe they are seizable.

Officers executing a warrant can seize undescribed items they discover in "plain view" during search.

Front 14

What is the analysis for the validity of a warrant affidavit relying on informant's tip helped by specific facts?

Back 14

1) Informant was in general sense reliable; and

2) Informant had reliable source for this specific information.

Front 15

When does the "plain view" seizure rule not apply?

Back 15

If officers come upon an item in plain view while they are searching improperly.

Front 16

To successfully challenge a search warrant based on inaccurate facts in the affidavit, a defendant must show:

Back 16

1) Affiant misstated certain facts;

2) Affiant did this internationally or at least with reckless disregard for whether the stated fact was accurate; and

3) Misstated fact was material, which means that without that fact the affidavit was not sufficient to support the search warrant

Front 17

Texas statutes impose requirements for search warrants beyond what the 4th Amendment requires.

List items required to be present in a Texas search warrant.

Back 17

A search warrant must contain:

1) Statement that it runs in the name of the "State of Texas";

2) Specification of the person, place or thing to be searched;

3) Specification of the items to be seized;

4) An endorsement of the date and hour it was issued; and

5) The signature of the issuing magistrate

Front 18

Who may issue a regular search warrant?

Back 18

Any magistrate.

Front 19

In deciding whether a warrant was validly issued, a court may consider __.

Back 19

Only the information within the "four corners" of the written affidavit.

Front 20

When must a search warrant be executed?

Back 20

Within 3 days, exclusive of the day of the issuance of the warrant and the day of the execution of the warrant.

Front 21

What is an evidentiary search warrant?

Who may issue such a warrant?

Back 21

A warrant that issues for an item that is seizable only because it is evidence that a crime was committed or a particular person committed it.

District judge, statutory county court judge, Court of Criminal Appeals judge, Supreme Court justice; or municipal court of record or county judge who is a licensed attorney*

*Except any magistrate may issue in county without a statutory county court or municipal or county judge who is attorney.

Front 22

Can you issue an evidentiary warrant for a personal writing?

Back 22

No

Front 23

When executing an evidentiary search warrant, officers may seize the items described in the warrant and items come upon in plain view for which a "regular" search warrant could issue. BUT, they can't seize?

Back 23

Items of mere evidence that are not described in the warrant.

Front 24

Can you issue an additional evidentiary search warrant for the same person, place or thing previously searched under an evidentiary search warrant?

Back 24

Only by a district or appellate judge.

Front 25

What are some exceptions to the requirement of search warrant? (and thus 'reasonable'?)

Back 25

Consent searches; automobile; exigent circumstances.

Front 26

Consent searches require neither warrant nor probable cause.

When is consent effective?

Back 26

Consent must be from either:

1) Someone with a general right of access to premises (actual authority to give consent); or

2) Someone reasonably believed by officers to have such access ("apparent" authority).

Front 27

In joint occupants situation, what is the general rule?

Back 27

Officers need consent from only one of several joint occupants.

If joint occupant at whom search is directed is present and actively objecting, consent from other joint occupants is ienffective.

Front 28

What is the scope of consent?

Back 28

Consent covers what reasonable person in the situation would understand the words used to mean.

Front 29

Moving vehicles and those parked in public places can be searched without a warrant, but probable cause is necessary.

What's the scope of the search?

Back 29

Search can extend to any place where the items might be found.

Front 30

What is the search incident to arrest?

Back 30

Custodial arrest of person in a vehicle (or immediately after getting out) permits as an incident of that arrest:

1) Search of the passenger compartment (including glove compartment);

2) NOT the trunk;

3) AND can't be made after D. secured in policy car.

Front 31

What is the inventory "inspection" to the vehicle exception to warrant requirement?

Can contents of "containers" in car be examined if a car can be searched?

Back 31

Properly impounded vehicle may be "inventoried" pursuant to standardized procedure.

Yes.

Front 32

If officers have probable cause to believe a traffic violation was committed, their actual "motive" for making the stop is __.

Back 32

Irrelevant.

Front 33

What is the exigent circumstances search?

Back 33

A warrantless search is permitted if officers have both:

1) Reason to believe delaying search to get a warrant would result in removal of destruction of the items; and

2) Probable cause to believe seizable items will be found

Front 34

Invalid arrest has no effect upon trial court's jurisdiction.

If valid custodial arrest made, automatic right to search which 2 places?

Back 34

1) Person of the arrestee (which includes pockets and items found on the person of the arrestee); and area of possible reach (person can lunge and reach).


If arrest made inside premises:

1) Officers automatically can look in immediately adjoining places where a person might be concealed;

2) Protective "sweep" of entire premises can be made only if officers have reasonable suspicion that dangerous persons are present

Front 35

What does "reasonable arrest" require?

Back 35

Probable cause to believe that a person committed offense.

Front 36

Under federal constitutional law, when is a warrant required?

Back 36

Only if premises are entered to search for suspect:

1) Suspect's own residence (arrest warrant is sufficient);

2) Other premises: search warrant is needed

Front 37

When can officers automatically search?

Back 37

Valid arrest made.

Front 38

What's the general rule for arrest under TX law?

Back 38

An arrest must be made pursuant to a valid arrest warrant (or combination search and arrest warrant).

Front 39

Under TX law, arrests without warrants are permissible if:

Back 39

1) Offense committed in officer's presence or view;
2) Probable cause to believe suspect committed a felony and reason to believe suspect is "about to escape,"
3) Suspect is found in a "suspicious place" and has committed a felony or breach of peace;
4) Suspect committed violation of Protective Order;
5) Suspect injured another and danger of further injury to victim;
6) Suspect found with stolen property;
7) Suspect injured member of family or household;
8) Probable cause to believe suspect committed a felony is based on admissible statement to officer

Front 40

Identify 2-3 items which TX law requires to be present in an arrest warrant.**

Back 40

1) Name of the person to be arrested or a physical description;
2) Name of the offense the person is accused of committing;
3) Signature of the issuing magistrate; and
4) Judicial office of the issuing magistrate.

Front 41

When an officer has a warrant, the officer has the authority to break down the door of the residence to make the arrest when:

Back 41

1) Arrest is for a felony; and

2) Officer gives notice of the officer's authority and purpose; and

3) Officer is refused admittance

Front 42

Pursuant to 4th Amendment law, detention that is not a valid arrest can be justified as a Terry stop.

When can such a stop be made?

Is an anonymous tip enough?

Back 42

Can be made on "reasonable suspicion."- some objective basis for officer's suspicion that suspect has committed, is committing, or is about to commit a crime.

Anonymous tip not enough if not adequately corroborated.

Front 43

What are 3 limits on field stops (Terry)?

Back 43

1) Can't be too lengthy (45 min is upper limit)

2) Suspect can't be extensively moved (ie., to stationhouse); and

3) No automatic right to search (unlike arrest!)

Front 44

If probable cause develops during a field stop, it becomes __.

Back 44

Valid arrest.

Front 45

When can a "weapons search" be made during a field stop?

Back 45

If officer has reasonable fear for safety:

1) Initially limited to patdown; and

2) Permissible only to determine if suspect has a weapon

Front 46

Does a traffic stop automatically permit a full search?

Back 46

No. Not like arrest.

Front 47

A suspect is seized only if either:

Back 47

1) Officer physically restrains him; or

2) Officer makes a "show of authority" and the suspect submits.

Front 48

D has 6th Amendment right to lawyer present at lineup or showup if it's conducted after judicial proceedings have begun.

1) It is not triggered by __.

2) No right to lawyer at __.

3) Can be waived?

Back 48

1) D's arrest.

2) Showing of photographs

3) Can't be waived

Front 49

D has due process right to have procedure not be extremely suggestive. This applies even when right to counsel does not.

What is the standard?

Back 49

Was the procedure so suggestive that it creates high likelihood that witness will erroneously identify D as perpetrator?

Front 50

If witness identifies D at procedure conducted in violation of either rule, prosecution cannot prove that identification, but...

Back 50

Witness can still make "in court identification" of D if prosecution establishes that this would have an "independent source," i.e., a source independent of the procedure.