Arrest Search and Seizure Exam

what does the fifth amendment encompass?

*double jeopardy- prevents person from being tried twice for same crime *self- incrimination - state cannot compel a person to furnish statements against oneself (forced testimony) right to remain silent *due process

juvenile interrogation rules

- Miranda has no financial effect for counsel, also invokes right to have parent present - any under 18 -if under 14 cannot waive right to have parent, guardian present

Define Common Law

- comes from old rulings - judge-made law -referred to as case law -derived from England - precedes both statue and constitutional law -codified in state statutes

when is a person arrested?

- either when they're told they're under arrest - or when they're freedom of movement has been deprived ex- placed in police vehicle

Arrest Warrant Facts

- valid throughout state, issued by judicial official -names/describes defendant, states offense -must be returned after 180 days(paper form) (within 24 hours if from electronic repository) still valid tho

Using special devices to enhance perception

-Binoculars and flashlight allowed to clarify -telescopes aren't unless used in open field with no expectation of privacy -aircraft survelliance allowed from open airspace k9 sniff not a search

4 Procedural Safeguards Const. Grants

-Habeas Corpus- requires person to be brought before judge to determine legality of detention -Jury- all criminal cases except impeachment tried by jury Bills of Attainder- prevents guilt without judicial proceedings Ex Post Facto Laws- prevents punishment for criminal acts committed before they were illegal

Seizures occur when?

-LEO applies physical force to a suspect - Issues a show of authority (command to stop, activates blue lights, and suspect submits) -conduct communicates person not free to leave

Types of objective factors

-LEO observations - time of day -proximity to crime -LEO knowledge of suspect etc

When can you arrest for crimes committed in other states?

-Misd. or felony committed in another state, obtain a fugitive warrant for the persons arrest from an NC judicial official -you can arrest without fugitive warrant if person charged in other state with crime punishable by more than 1 year imprisonment

Arrest without a search warrant

-any offense committed within officers presence -out of presence: felony or misd and will not be apprehended unless immediately arrested or may cause physical injury to himself or others or damage property or - misd concealment of merchandise, dom. criminal trespass, dwi, violated dvpo and domestic assault, - violated pre-trial release

Miranda basics

-applies when there is CUSTODY and INTERROGATION -during routine booking if questions relevant to crime, Miranda read before question asked - have waiver signed if person refuses to do so but talks have witness sign waiver

searching person incident to arrest

-automatic right -lungable area as well, doesn't extend to interior of vehicle -close proximity to time and place of arrest -

Define Constitutional Law

-basic law of the land -supreme law of the land -sets fourth fundamental principles for government includes grants and limitations of power -includes judicial interpretations of the constitution

Arrest with warrant, warrant not In possession

-can arrest any time, in public place - must inform person of warrant existence

Arrest with an arrest warrant in possession

-can arrest any time/place within LEO territorial jursid.

what is the Carroll doctrine/ automobile exception

-car in public place and officer sees evidence of crime, officer may seize without search warrant

suspect request to remain silent you must

-cease interrogation - you can re-initiate after significant time; couple hours

define criminal summons

-charges crime, order accused to court -not arrested

citation

-directive issued by LEO for person to appear in court for MISD or infraction charges

define magistrates order

-document that charges person with criminal offense -issued after pc determined by magistrate -paper traffic citation can be converted into MO by magistrate signature

fourth amendment and warrantless searches

-doesn't apply to a private person searching or seizing anothers property only LEO -only applies when there is a reasonable expectation of privacy ex (no expectation of privacy as overnight guest in someone's home) NO PRIVACY IF: left out in the open, abandoned, or left in plain view

urgent necessity

-enter home without warrant or consent due to exigent circumstance to save life, prevent injury or protect property

Define Territorial Jurisdiction

-geographical area in which LEO is empowered to act -State agents (statewide) -Sheriffs- county, county prop. , anywhere in state for felony committed in the county -City police- in city limits, 1 mile outside limits and city prop. outside city ABC (county)- anywhere in county they're employed Company Police- prop owned or possessed by employer Campus Police- on campus and portions of public roads passing through or immediately adjoining their property

define line up

-id procedure -group of similar persons -photo array, photo line-up -images presented sequentially and separately - fillers resemble eyewitness description (at least 5) -if id successful confidence statement completed

Statutory requirements upon arrest

-identify as LEO - inform under arrest -inform cause of arrest soon as possible unless as evident

Immediate and continuous pursuit

-if ANY crime committed with jurisdiction, LEO can pursue anywhere in state to make arrest as long as they don't stop pursuit to do anything else -LEO may pursue outside of NC only if suspect committed felony - if investigating implied consent offense or vehicle crash, that occurred in jurisdiction you LEO can investigate and seek evidence of impairment anywhere in state or out of state, and make arrest anywhere in state

search motor vehicle incident to arrest

-if person arrested in vehicle, entire passenger compartment searched if: - reason to believe evidence of crime is within vehicle includes (front/back seats, glove compartment and all containers open or closed locked or unlocked within interior) -when person unsecured and within reaching distance of the passenger compartment at time search conducted (rare)

when can a private citizen detain?

-if person commits felony -breach of peace -physical injury -theft or destruction of property *citizen must immediately notify leo and release person to same, citizen may use reasonable force to detain

invocation of the right to counsel

-interrogation ceases -you can only reinitiate when lawyers present, suspect initiates , custodial interrogation following 14 day break in custody

6th amendment right to counsel

-invoke after initial appearance before district court judge or magistrate , indictment -stays with defendant until sentenced, found not guilty or case dismissed -custody status doesn't matter -charge specific -cant use undercover to question once attached -requires waiver before questioning -even if invoked officers can still initiate interrogation but must get waiver -undercovers can listen but not question

search warrant

-issued by judicial officials -appellate and superior valid statewide -district - within district -clerks and magistrates within county applicant questioned under oath -app should include desc of property to be seized, -premises include address and physical description or map -include vehicles in case they're not at residence at time of search

Anticipatory Search Warrant

-issued prior to all facts or events taking place that create probable cause to search

presentation of warrant to judicial official

-judicial official makes independent decision on pc -affidavits should be attached to search warrant

emergency authority

-leo believes urgently necessary to save life, or prevent serious bodily injury , avert or control public catastrophe LEO may -enter building, vehicle, premise -limit or restrict the persons in premise or area exercise control over the property

execution of search warrant

-must be executed within 48 hours -anytime day or night -state identity before entering premise (unless danger to life) -leo can secure premises and occupants -read warrant before search -if no one home leave copy of warrant affixed to premises or vehicle searched - search warrant returned without delay once complete to clerk, leo must sign and swear to truth of inventory

juvenile NTO

-must have NTO to collect evidence, unless transferred to superior court and tried as adult -offense must be felony, -can be fingerprinted and photographed if 10 or older when non-divertible offense committed, or in physical custody of NCDPS, or if adjudicated delinquent -violation of juvenile NTO is misd. -consent not allowed must have NTO

What are voluntary/consensual encounters

-no justification required -not a seizure -avoid confrontational language, physical contact - inform person they're free to leave - don't frisk S

Administrative inspection authority

-not normally requested by LEO but LEO may assist -LEO stands and keeps peace, evidence of crime not admissible in court unless it relates to purpose of inspection, however illegal contraband can still be seized -with consent illegal items can then lead to search warrant -ALE can conduct warrantless inspections of premises selling alcohol -FIRE scene, warrants should be obtained asap

Obscenity Offenses

-only DA or prosecutor may apply for search warrant to seize obscene materials

Places with no expectation of privacy

-open fields outside the curtilage (illegal items seized legal) -abandoned property: real-unoccupied building personal property- voluntarily discarded such as trash outside of curtilage -Garbage- can be searched by LEO if picked up and removed from within curtilage by trash workers at normal time in normal manner

Motor vehicle exception/carroll doctrine/searches

-pc to search, in public place, no warrant necessary -containers can be search if evidence of crime could be there regardless of ownership

consent search authority

-person who has apparent authority to control given area -if equal and one objects then search invalid -roommate can consent to common area but not room of other or exclusive privacy area -parent can consent for search of childs room but not personal possessions within room -tenant can consent not landlord of rented prop. -homeowner can consent to search of home but not exclusive guest room employer-entire work space except exclusive areas -principles or school administrators search lockers -owner can give consent to search car even if not driving

sources of search warrant info

-personal observation -hearsay info (citizen informants (named) I-if using ci include why they're credible or statement of penal interest (incriminating)

what is a non-testimonial evidence

-physical evidence taken from the body of a person for comparison with evidence found at crime scene

LEO role in issuance of criminal process

-presents facts under oath to magistrate to justify issuance of process

Order For Arrest

-process issued by judicial official to take person into custody

what does the 6th amendment encompass?

-speedy trial -no impartial jury -right to face accusers -right to be informed of charges -right to counsel

protective sweep home car frisk

-to locate additional dangerous persons -locate weapons in car

nto basics

-used to obtain n-t evidence -prints, palms, hair samples, handwriting, voice, photos, line ups , -requested prior to arrest, after arrest , prior to trial -cant be requested if suspect in custody -must be requested by prosecutor -any judge can issue order, clerk/magistrate cannot -order must be served at least 72 hours before designated time of procedure -must be delivered in person - subject has the right to counsel - any leo can conduct procedure, qualified health professional to extract body fluids - force can be used, person detained no longer than 6 hours unless arrested -if person resists can be charged with contempt -order must be returned to judge within 90 days

non-testimony evidence obtained when suspect not in custody

-voluntary consent -nto -search warrant

how to obtain non-testimony evidence from suspect in custody?

-voluntary consent -warrantless seizure/take it - search warrant, court order (safest)(required for blood)

when is a person seized?

-when a reasonable person feels they're not free to walk or drive away from LEO - when a person submits to an officers command to stop or when he is stopped - when a reasonable person doesn't feel free to terminate an encounter with LEO ex: person running isn't seizure, becomes seizure when they're caught or stops running

procedures following arrest

-without delay go before judicial official for PC -allow defendant to contact lawyer and family -notify juvenile guardian within 24hours -notify of temp cust and parents right to be present until determination of on-secure custody order

Define Statutory Law

-written laws enacted by the legislative branch of state/federal gov't -declares, commands, prohibits something -written by nc general assembly in nc -courts interpret the meaning thereof

Entering private premises to arrest

-you can enter defendants private premise to make an arrest if you have: -arrest warrant in hand or copy, and PC defendant is inside -must announce -may use force to enter premise or vehicle if =reason to believe admittance being denied or delayed -notice not required if danger to life presented -must knock and announce even if evidence may be destroyed

define show up

1 on 1 confrontation btwn eyewitness and suspect -close in time and crime proximity

Amendments 1-10

1. Freedom of speech, religion, press, assembly and petition 2. Rights to bear arms 3. Unlawful quartering of troops 4. Prohibits unreasonable search and seizure 5. rights of those accused of crimes 6. rights of the accused during prosecution 7. right of trial by jury in civil cases 8. protects from cruel and unusual punishment 9. other fundamental rights not listed 10.power not granted to us. to the states

deadly force general statute and when is it justified

15A- 401 D2 - defend oneself or third party from imminent use of deadly force- prevent escape by means of deadly weapon prevent escape or effect arrest of person who presents imminent threat of death or serious injury unless apprehended without delay -prevent escape from custody of person convicted of felony

Use of force statute and when is it justified

15A-401 d 1 -prevent escape or to effect arrest of person -defend oneself or 3rd party from imminent use of physical force while attempting arrest or preventing escape

Miranda age guidelines

18 or older adult -

which amendment does Miranda apply to

5th

What did the due process clause of the 14th amendment do?

Applied most of the safeguards in the bill of rights to the states

First Ten Amendments are called?

Bill of Rights

What is the free exercise clause?

Citizens have a right to worship god, a supreme being or any other belief

Name 3 sources of law

Constitutional Law Statutory Law Common

what did Tennessee vs Garner say?

Deadly force cant be used to stop fleeing criminal that is neither dangerous nor armed

what is the 14th amendment

Due process clause- protects rights of citizens against infringement by the states

What does the 1st amendment do?

Establishes freedoms of *religion (prevent fed from establishing a national church) *speech{right to criticize and publish freely} *press( right to gather and receive information) *assembly, and petition (right to peacefully assemble and petition the government )

What are the 7 major articles of the constitution Laws. Ensure. Justice

I. establishes structure and function of congress, ensure legislative powers, creates Senate and House of Reps in congress II. Establishes executive branch and powers of President III. Judicial powers of the US in the supreme court IV. Duties states owe each other V. Procedure to amend constitution 2/3 votes VI. Supremacy clause (const. supreme law of the land) VII. Requirements for original ratification

Types of speech with no 1st amendment protection

Obscenity, fighting words , threats, incendiary speech(imminent violence or force against govt")

Original Purpose of Constitution

Prevent strong central government that could violate rights

What does the establishment clause do?

Prevents gov't from requiring or enforcing religious observations Gov't cannot compel citizens to follow any particular religion

what do you need to arrest person

Probable cause

what are the 2 types of due process

Procedural due process- guarantees rights wont be taken without chance at being heard Substantive due process- guarantees hearing, notice and results are fair

to interrogate one must?

Read Miranda rights - obtain waiver for suspect

what do you need to detain a person to investigate crime?

Reasonable suspicion

Name and describe the 2 types of law

Substantive Law- defines the rights and duties of citizens, prohibits robbery, larceny , assault etc. Procedural Law- specifies the method by which substantive law is enforced

define arrest

a seizure for the purpose of initiating criminal prosecution -supported by probable cause

Interpret symbolic speech?

actions intended to convey meaning such as the burning of an American flag

methods to access financial records

customer authorization search warrant pending litigation subpoena/court order

Graham vs connor

defined objectively reasonable -test for all uof.

define exculpatory statement

denies guilt

define inculpatory statement

establishes guilt, incriminates

entering third party premises to arrest

exigent circumstances or consent -search warrant -notice no search warrant needed if consent received

exigent circumstance

exist when there Is both probable cause to search and likelihood absent immediate action officers could be endangered or evidence destroyed or removed from jurisdiction -you can enter home and conduct warrantless search without warrant with exigent circumstances

degree of certainty associated with probable cause

fair certainty -supreme court states "at time of arrest, the facts and circumstances within the officers knowledge and of which had reasonable trustworthy info were sufficient to warrant a prudent person in believing defendant had committed crime

questioning by undercovers requires Miranda true or false

false

Consular notification

foreign national- anyone not US citizen on US land -mandatory notification or offer -entitle to communicate with consulates after detention -

electronic storage device search warrant

hardware, software, documentation notes, storage media -exam,search and seizure

what is reasonable suspicion

minimal level of objective justification, more than a hunch but less than probable cause

limits during investigative stops

no more than 20 mins preferred -gather info to determine probable cause -avoid moving suspect against will, not under arrest -no Miranda needed but suspect doesn't have to answer

entering home with exigent circumstances

no warrant necessary -hot pursuit, danger to public or LEO if not apprehended immediately, need to prevent suspects escape, suspect armed, gravity of offense

citizens helping police

not obligated -assume same power as LEO when requested -not subject to criminal /civil liability , entitle to workers comp if Injured

probable cause affidavit includes what

officer background, experience, training, years, certification, education, knowledge of offenses

persons on premises during search warrant

public places- you can detain ind named on warrant, you can only detain or frisk others if reasonable suspicion exists armed and dangerous private places- detain anyone on premises -can frisk anyone armed and dangerous -full search of those named on warrant -unnamed person if all named searched and contraband still uncovered, reason to believe person has item

Legal standard for investigative/terry stop

reasonable suspicion based on specific and articulable facts

What is the plain view doctrine?

says you can legal seize an item if -in lawful position when you see it -object immediately apparent -lawful right to access object ---can establish PC must have search warrant if not in lawful area to seize -also applies to smell and touch -can seize immediate apparent contraband while conducting terry frisk

body cavity search requirements

search warrant for x-ray and extraction by health professional

service provider search warrant

service records, billings and subscriber info

Foreign Diplomats

those immune placed on diplomatic list by office of protocol -diplomatic immunity principle of international law - persons may not be arrested or detained -can be issued traffic citations

Purpose of an investigative stop?

to determine if there's probable cause to believe that - a crime has or is being committed -and suspect has committed that crime -also known as a terry stop

Define Subject Matter Jurisdiction

types of crimes for which officers are authorized to make arrest on Any crime- ALE, SBI, Sheriff, City, Local ABC, Company/Campus Limited subject matter - Highway patrol, DMV, Wildlife, Probation/Parole

procedures after arresting juvenile/minor

undisciplined/delinquent- notify parent of temp custody and right to be present pending non-secure order minor charged- notify guardian within 24hours, not required if emancipated or not taken into custody or charges is MV 3 points or fewer except dwi charge or mv offense not a moving violation -notify principal within 5 days

Define selective incorporation

when certain standards applied to fed. gov't and another to the states

Public safety exception

when you have unrecovered dangerous weapons in a public place you can ask questions to garner location