Lynnfield MPTC Constitutional Law Study Guide

Two aspects to reasonable expectations of privacy:

(1) person must expect a particular place to be private (subjective aspect) and (2) that expectation must be deemed reasonable by society (objective)

The Five Powers of Arrest

1- arrest warrant 2-felony (committed in presence or on probable cause) 3- misdemeanor in presence that caused breach of the peace 4- specific misdemeanors in presence with power of arrest (list) 5- specific misdemeanors on probable cause (list)

What is defined as nighttime?

10pm till 6am the following morning

How many amendments does the Constitution have?

27

How many articles are in the Constitution?

7 articles

What is a frisk in regard to a motor vehicle?

A frisk may extend into the interior of motor vehicle but must be limited in scope. The search must be confined to the area from which the suspect may gain possession

Expectation of privacy: Rental cars

A person not listed on a car rental agreement but in possession of a rental car provided to him by the actual renter does have an expectation of privacy in that vehicle.

What is a consent search?

A warrantless search where a person allows officers to search places where the person consenting has a reasonable expectation of privacy.

Motor vehicle inventory

Administrative procedure rather than a search. Minimizes claims of theft against departments and protects police and public from dangerous items.

Exigent Circumstances

Allows police to make entry and conduct searches without a warrant in places where a reasonable expectation of privacy exists.

mutual aid agreement

An agreement among emergency responders to lend assistance across jurisdictional boundaries.

Special warrant exceptions: Anticipatory

Anticipatory search takes effect at a specified future time and not on its issuance.

Where can authorized people issue search warrants in the commonwealth?

Anywhere. Including areas outside the territorial jurisdiction of their assigned courts.

specific and articulable facts: Examples

Area of encounter, reason for encounter, officer training and experience, familiarity/lack of familiarity with defendant, defendant's nervousness or evasive conduct toward the police, high crime area.

Information known to Police: Probable Cause. Permissible Action?

Arrest and/or search

Reasonable Suspicion

Based on "specific and articulable facts" which, when taken together, would convince a person of reasonable caution to believe that a person has committed, is committing, or is about to commit a crime. (Terry v. Ohio)

What is constitutional law?

Based on the supreme law of the US

What can be used for plain view? (Special devices)

Can: Binoculars and flashlights, aircraft made from lawfully navigable airspace using unaided eye. K9 sniff may be used but on motor vehicle stops there must be reasonable suspicion. Cannot: thermal imaging, audio listening devices (require warrant)

Expectation of privacy: Cell Phones

Cell phones require search warrants.

Information from other Police officers, what is it called?

Collective Knowledge. Knowledge of one is knowledge of all.

What are the three important factors for police while getting consent to search?

Consent was voluntary, clearly communicated, and person had actual authority or apparent authority to allow consent to search.

14th Amendment

Declares that all persons born in the U.S. are citizens and are guaranteed equal protection of the laws

What is a search incident to arrest?

Does not require a warrant. May be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made.

What is actual authority?

Either the person lives in the home with a shared right of access to the home or the person has a written contract that specifically empowers that person to allow officers to enter the home to search and seize contraband or evidence.

2nd Amendment

Establishes the right to keep and bear arms (Columbia v. Heller, 2008)

Article XIV

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.

Information known to Police: Reasonable suspicion + reasonable fear for officer safety. Permissible action?

Exit order

common civil lawsuits filed against individual officers:

False arrest, unlawful use of force, malicious prosecution, failure to intervene and stop unlawful actions by a fellow officer, interfering with constitutional right.

What is the Bill of Rights?

First 10 amendments to the Constitution

What is the two-step inquiry to determine the validity of a Terry-Stop?

First, whether the initiation of the investigation was permissible under the circumstances, and second, whether the scope of the search was justified under the circumstances.

4th Amendment

Freedom from unreasonable searches and seizures

1st Amendment

Freedom of Religion, Speech, Press, Assembly, and Petition

Information known to Police: Reasonable Suspicion + Armed + Dangerous. Permissible action?

Frisk

Automobile exception and Caroll Doctrine

If a police officer sees a vehicle in the public way, and it has evidence of a crime that officer can seize it without a warrant. If they also have PC to believe more evidence is within the car, they can search wherever reasonable for that evidence.

Information known to police: Reasonable suspicion. Permissible action?

Investigatory / Terry Stop

What does the Constitution do?

It establishes the rights of all citizens

What does the Bill of Rights do?

It protects individuals and their liberties

frisk

Limited search of outer clothing and other areas in person's immediate control for weapons only, not evidence. Also applies to motor vehicles.

Best practices for Strip searches:

Must be done in private, have no more than one officer present, gender of the officer must be same as the person to be searched, no physical touching, cannot be humiliating in nature, consistent with department policy.

Different ways to make extraterritorial stops:

Mutual aid agreements, OIC aid, transferred authority, fresh and continued pursuit, citizen's arrest, arrest warrant.

Can police search over the objection of another co-occupant?

No

Do "No tresspassing" signs prevent admissibility of evidence seized in an open field in plain view?

No

Expectation of privacy: Open fields

No reasonable expectation of privacy in places that can be easily seen in plain view from ground or air.

Expectation of privacy: Abandoned Property

No reasonable expectation of privacy.

Article XII

No subject should be compelled to accuse or furnish evidence against him or herself.

Voluntary Encounters

Non-criminal in nature. Not a seizure under the 4th amendment. Police do not need any legal justification to approach, talk with, or ask questions of any citizen in a public place, so long as the citizen is willing to listen and voluntarily answer.

Inventories

Not investigative searches. Purpose is to safeguard owner's property, protect police from accusations of theft and, in the case of a detained person, to protect the place of detention from introducing dangerous items into that environment.

What types of speech are NOT protected under the first amendment?

Obscenity, fighting words, threats, incendiary speech.

Fresh and continued pursuit

Officer can pursue a suspect out of one jurisdiction across others. Key is the observed offense is arrestable and must occur in the officer's jurisdiction.

OIC Aid

Officer in charge may request an Officer in charge from another town or city for aid. Responding officers have full police authority when they arrive in the requesting community.

Specific and articulable facts that support a frisk:

Officer observations, officers training and experience, suspect conduct and mannerisms, crime being investigated, suspects background coupled with other factors. Suspect admission that he or she has something dangerous on them.

What makes a consent search valid?

Officer who requests consent must be lawfully present and the person who gives the consent must have the authority to consent and do so voluntarily.

Criteria for person inventory

Person must be lawfully detained and is about to be incarcerated by police. Inventory must be conducted pursuant to standard, written police procedures. The scope of inventory must be reasonable.

Knock and Announce Rule

Police executing a search warrant shall knock and announce their presence and purpose before forcibly entering a residence unless a no-knock warrant was authorized.

Aquilar/Spinelli Rule

Police must establish the source's "basis of knowledge" and "veracity" when information is received from a source other than personal observations or collective knowledge of police.

Transferred Authority

Police officers may require suitable aid from an officer in another jurisdiction: In the execution of their office from another jurisdiction, in the preservation of the peace, in the apprehending or securing of a person for a breach of the peace, and in cases of escape or rescue of persons arrested upon civil processes.

civil liability

Potential responsibility for payment of damages or other court-ordered sanctions as a result of a ruling in a lawsuit.

Examples of when police can search without warrant because of no reasonable expectation of privacy:

Property that has been discarded, abandoned, or lef tin plain view.

6th Amendment

Requires all persons charged with a crime be informed of the charges against them. People charged with a crime have a right to counsel and speedy public trial by an impartial jury. Also have a right to confront witnesses against them and compel witnesses to testify on their behalf.

Person inventory

Routine administrative step following arrest and preceding incarceration.

Actual authority in regard to common areas:

Spouses or roommates may give consent to search common areas, but NOT areas where another person has an exclusive privacy interest.

jursidiction

The specific geographical area or territory where a police officer, constable, or other authorized mass official can arrest or serve processes, provided they in uniform or displaying a badge of office.

Under the 4th Amendment, the court's analysis on the reasonableness of any search will be based on what?

The totality of the circumstances

How can you conduct a frisk?

There must be a constitutional seizure of the individual and, police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed AND dangerous.

What are threats?

Utterances intended to intimidate citizens. Threats must be "true threats" and not just expressive speech.

Information known to police: None/hunch/rumor. Permissible action?

Voluntary encounter

Four questions to ask when determining curtilage:

What is the distance or proximity from the area to the main dwelling? Is the area within an enclosure that also surrounds the dwelling? How is the area used? Were there streps taken by owner or resident to restrict public observation?

Apparent Authority

When an officer makes a faulty judgment about someone's actual authority over the home. The mistake must be a reasonable one.

What is a seizure under the 4th amendment?

When police take possession of property, make and arrest, or restrict a person's ability to move freely.

How do exigent circumstances exist?

When there is BOTH probable causes to search; AND a reasonable likelihood of danger to officers or third parties; or a reasonable likelihood of imminent removal or destruction of evidence; or a risk of flight by a wanted person.

What are the requirements for using the plain view doctrine? (4)

Where the police lawfully in a place from where they viewed the item? Did the police come across the item unintentionally? Did the police have a lawful right of access to item? Was incriminating character of item immediately apparent, OR was item reasonably related to criminal activity the police were already investigating?

Search warrants

Written documents issued my Mass judicial officials that empower officers to search, without consent and by force is needed, a defined place for people or evidence of a crime. Police need a warrant to search where there is reasonable expectation of privacy.

Does the first amendment protect an individual's right to audio and video record the police in performance of their duties in public places?

Yes (Glik v. Cunniffe, 2011)

Can parents give consent to search a child's room?

Yes, but not in individual possessions where the child has exclusive access

Merchant Detention

a merchant may detain a shoplifting suspect in a reasonable manner and for not more than reasonable length of time.

what is Incendiary speech ?

advocates the imminent violent use of force against the government.

What can search incident to arrest prevent?

escape, harm to the public, destruction or concealment of evidence of the crime for which the suspect was arrested.

exlusionary rule

evidence seized by illegal means cannot be used during a criminal trial (fruit of the poisonous tree" doctrine)

basis of knowledge

how the source or witness acquired the information.

Evidence obtained from an independent source

if evidence comes from one unlawful source and one lawful source, the evidence will not be suppressed because it can be taken from the lawful independent source

What is curtilage?

immediate area surrounding a dwelling.

case law

interpretations of law by courts

What are protective sweeps?

limited, warrantless searches to conduct a cursory check of a premise for people only, NOT EVIDENCE.

When do search warrants need to be executed?

must be executed as soon as reasonably possible, cannot be executed more than 7 days after issuance.

Plain View Doctrine

officers may examine and use as evidence, without a warrant, contraband or evidence that is in open view at a location where they are legally permitted to be.

What is a search under the 4th amendment?

physical invasions or intrusions of privacy by police on people, homes, or personal property to obtain information or gather evidence.

citizen's arrest

private person may lawfully arrest someone who has "in fact" committed a felony.

8th Amendment

protects against excessive bail or fines and prohibits cruel and unusual punishment.

5th Amendment

protects citizens from being punished for the same offense twice (double jeopardy); from being compelled to testify against themselves (self-incrimination) and guarantees due process of law.

Special warrant exceptions: Any person present

search warrant can authorize officers to search any person present; however, officers must have probable cause to believe that "any person present" during execution is reasonably involved in said criminal activity.

Special warrant exceptions: Nighttime

search warrants are to be executed during the daytime unless the warrant directs a nighttime search.

What is an Investigative/threshold inquiry/terry stop?

short-duration, warrantless seizures to determine if probable cause exists, specifically if a crime has or will be committed. MUST HAVE REASONABLE SUSPICION.

Probable Cause

trustworthy facts and circumstances sufficient to convince a person of reasonable caution to believe that it is more likely than not that in the case of a search, a specific item subject to seizure will be found in the place to be searched. In the case of an arrest, a crime has been committed and the person to be arrested has committed it.

Attenuation / purging the taint

where unlawful police action INDIRECTLY leads to the discovery of evidence or subsequent events reduce the impact of the unlawful action the court may find that the evidence was so far removed from the misconduct that it will not be surpressed.

veracity

whether the source if reliable or believable. (Reports from anonymous sources lack this)

What are fighting words?

words that "by their very utterance inflict injury or tend to incite an immediate breach of peace"

What is statutory law?

written by legislative branches of state or federal government