Constitutional Law Test 2 (Chapters 4-6)

Authority to Search the Arrestee's Person Incident to Arrest

- A lawful custodial arrest carries automatic authority to search the arrested individual's person, clothing, and articles closely associated with his person that are on or carried by him. - Authority to perform this search does not depend upon the nature of the offense of arrest or the probability that the search will turn up weapons or evidence. - The search may be performed either at the scene of arrest, the police station, or at both places, and may be as methodical as the police wish to make it.

To have an officer search your home without a search warrant, you need to be...

- A resident - Have capacity

Warrant Requirement for Evidentary Searches

- A search warrant is necessary to conduct a full search, expect when: 1. Police obtain consent from someone who has authority to give it. 2. The search is conducted as an incident to a lawful custodial arrest. 3. Police have probable cause to believe that a motor vehicle contains property they may be lawfully seize. 4. Police are confronted with exigent circumstances that require immediate warrantless action.

Application of the Fourth Amendment to Beeper, GPS, and Cell Phone Tracking

- A search warrant is necessary to: < Track objects inside homes and other private locations. < Attach a tracking device to the suspect's property < Track a suspect 24/7 for an extended period.

Overview of the Wiretap

- A wiretap order is necessary to intercept a protected communication unless one of the parties consents. - An interception occurs when a device is used to acquire access to the contents of a protected communication in the course of its transmission. - The Wiretap Act protects three kinds of communications: 1. Wire 2. Oral 3. Electronic

Communication Surveillance That is Not Regulated by the Wiretap Act

- A wiretap order is not required to conduct communications surveillance when: 1. The conversation is overheard naturally (i.e, without the aid of a device). 2. The target of the surveillance lacks a reasonable expectation that the communication is not being intercepted. 3. A party to the conversation performs or consents to the interception.

Detection Devices: Fourth Amendment Requirements: None

- Detection devices capable of revealing only the presence of contraband.

Application of the Fourth Amendment to Technologically Assisted Surveillance: Fourth Amendment/ Statutory Requirements: Search Warrant

- Employment of sense-enhancing devices, not in general public use, to acquire information about activities inside a home not visible from outside.

Mere Evidence

- Evidence that links a suspect to a crime, other than the fruits or instrumentalities of the crime or contraband. - Clothing worn during the crime is an example.

Physical Intrusion into a Constitutionally Protected Location: Persons

- For search purposes encompasses those parts of a suspect's body and clothing that are not exposed to the public, such as private parts of the anatomy, biological materials, and pockets and undergarments

The Requirement to Warn the Suspect

- Four Miranda Warnings 1. She has the right to remain silent. 2. Anything she says can and will be used against her in a court law. 3. She has the right to have an attorney present during interrogation. 4. If she cannot afford an attorney, one will be appointed for her.

Categories of Searches

- Full Search - Limited Weapons Search - Inventory Search

Physical Intrusion into a Constitutionally Protected Location: Houses

- Includes homes and their surrounding buffer zones known as curtilage, apartments, hotel rooms, private offices, and warehouses, telephone booths and even fixtures like file cabinets and lockers. - In fact, this term has been defined to include any premises, structure, of fixture in which a reasonable expectation of privacy exists. - Shopping malls and retail establishments, in contrast, are constitutionally protected locations only during hours when they are closed to the public.

Application of the Fourth Amendment to Technologically Assisted Surveillance: Fourth Amendment/ Statutory Requirements: Generally requires a wiretap order

- Interception of wire, electronic, or oral communications with a device.

Foreign Intelligence Surveillance Act

- It establishes a special statutory procedure governing electronic surveillance conducted inside the United States for the purpose of gathering foreign intelligence. - Surveillance orders require probable cause to believe that the target of the surveillance is a foreign power, agent of a foreign power, or a member of an international terrorist organization. - A surveillance order is not required to conduct electronic surveillance of communications between persons inside the United States and persons overseas when the target of the surveillance is the person overseas.

Application of the Fourth Amendment to Non-assisted Surveillance

- Matters in open view are not protected by the Fourth Amendment. Police are free to investigate, using their natural senses in any location where they are lawfully present. - The home carries heightened Fourth Amendment protection. Warrantless surveillance may not be conducted from a vantage point inside the curtilage, but an open field carries no Fourth Amendment protection. - Information voluntarily disclosed to a third party carries no Fourth Amendment protection.

The Officer Must Have a Lawful Right of Access to the Object

- Objects recognized as criminal evidence or contraband may be seized without a search warrant only if the officer is able to gain physical access to them without violating the Fourth Amendment. - If a physical intrusion into a constitutionally protected location is necessary to gain access, the officer must obtain a search warrant or consent to enter.

Differences between open view and plain view

- Open View: Officer uses five senses - Plain View: A legitimate reason to be there

The Fourth Amendment mentions four subjects as having constitutional protection.

- Persons - Houses - Papers - Effects

Under Constitution search seizure law, what is a person?

- Physical beings: body, clothing, biological materials, private anatomy, pockets, etc.

A search occurs when police violate a suspect's reasonable expectation of privacy either by:

- Physically trespassing into a constitutionally protected location ( i.e. a location in which the suspect has a reasonable expectation of privacy) - intruding into matters a suspect reasonably expects are private.

Vehicle Searches incident to an Occupant's Arrest

- Police may perform a vehicle search incident to arrest only if: 1. The arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. 2. Police have reason to believe that the vehicle might contain evidence of the crime for which the arrest is made. - The scope of the search extends to the entire passenger compartment and at containers located inside, without regard for ownership. - The intensity may be as thorough as necessary to find offense-related evidence. - The timing of the search depends on the justification. If the justification is protecting the officer's safety, the search must be performed while the suspect is unsecured and within reaching distance of the passenger compartment. If the justification is reason to believe that the vehicle contain evidence of the crime for which the arrest was made, the search may be postponed until after the arrest scene has been secured.

Fourth Amendment Requirements for Seizing Property: Use the Object as Evidence

- Probable cause to associate the object with a crime and either a search warrant describing it or a plain view discovery.

Fourth Amendment Requirements for Seizing Property: Prevent the Object from Being Moved While Applying for a Search Warrant

- Probable cause to obtain a search warrant coupled with the risk that the object will be moved unless the police seize it now.

Fourth Amendment Requirements for Seizing Property: Detain the Object for Investigation

- Reasonable suspicion that the object is or contains criminal evidence or contraband.

The Fourth Amendment regulates three activities...

- Searching persons for evidence - Searching places and things for evidence - Seizing evidence

Particularity for a search warrant

- Specify the area to be searched - Specify the item to be seized - Why

Exceptions to the Exclusionary Rule

- Suppression is not required if: 1. The same evidence inevitably would have been discovered through lawful means. 2. The officer acted in objective good faith. 3. The illegality related only to the manner of entering to execute a valid search warrant. 4. The evidence is offered for the limited purpose of impeaching (i.e. discrediting) the defendant's own testimony. 5. The evidence is offered in a proceeding other than the defendant's criminal trial.

Search of Articles Not Closely Associated with the Arrest Individual's Person

- That were on or carried by him at the time of arrest may be searched without a warrant only if the arrestee is unsecured and within reaching distance at the time of the search.

Nonsearch Investigative Activity

- The Fourth Amendment does not treat the following activities as searches: 1. Searches and seizures performed by private parties without government complicity. 2. Searches and seizures of abandoned property. 3. Investigation of matters exposed to public view 4. Canine inspections to detect for the presence of narcotics.

Comparison of the Right o Counsel Under the Miranda Rule and the Sixth Amendment

- The Miranda right to counsel applies before formal charges are lodged, the Sixth Amendment right to counsel afterward. - The Miranda right to counsel is available only during custodial interrogations. The Sixth Amendment right to counsel is available whenever the police deliberately elicit information from a defendant about pending criminal charges, whether the interview constitutes an interrogation or the defendant is in custody or at large. - The Miranda right to counsel is not violated by secret interrogations conducted through undercover agents, informants, jailhouse snitches; the Sixth Amendment right to counsel is. - The Sixth Amendment right to counsel is offense specific; it applies only when a defendant is questioned about a crime he has already been charged with. The Miranda rule is not offense specific; it applies whenever a suspect in custody is interrogated about any uncharged criminal activity. - Both rights to counsel may be waived and the procedures for obtaining a void waiver and conducting the interview are the same for both.

Sixth Amendment Restrictions on Police Questioning

- The Sixth Amendment right to counsel attaches when adversary judicial proceedings are initiated. - From this point forward, the government is prohibited from deliberately eliciting incriminating information from the defendant outside the presence of counsel unless the defendant gives a valid wavier of the right to counsel. - Sixth Amendment restrictions on interrogation are offense specific. The restrictions apply only when the questions relate to other uncharged criminal activity. - The Sixth Amendment right to counsel can be waived by a defendant in the same way that the Miranda right to counsel can be waived.

Vehicle Searches Based on Probable Cause (Automobile Exception)

- The officer must have probable cause to believe that the vehicle contains criminal evidence of contraband. - The scope of the search extends to the entire vehicle, from motor compartment to trunk and all the contents. - The intensity is limited to search activity necessary to find the objects the officer has probable cause to believe are hidden in the vehicle.

Vehicle Inventory Search

- The purpose of the search is to secure the owner's valuables and protect the police department against liability for loss and theft. - Police must have legal authority to impound the vehicle. - Police must follow standard procedures for inventorying the contents of the impounded vehicles. - The scope of the search is governed by these procedures. - The intensity is limited to activity necessary to catalog and safeguard the items.

Categories of Searches: Inventory Search

- The purpose of this search is to catalogue property that police have taken into custody. - Grounds for conducting: Authority to impound and adherence to police department regulations governing conduct of inventory searches.

Categories of Searches: Limited Weapons Search

- The purpose of this search is to disarm person to protect officer's safety. - Grounds for conducting: Reasonable suspicion that a person lawfully detained is armed and dangerous.

Categories of Searches: Full Search

- The purpose of this search is to gather of evidence. - Grounds for conducting: Search warrant or recognized expectation to warrant requirement

Premises Searches Conducted Under the Authority of a Warrant

- The scope of the search extends to the residence, curtilage, and all structures and vehicles inside the curtilage. - Police may search everything found on the premises that is a plausible repository for the objects described in the warrant, regardless of ownership. - The occupants may be detained while the search is in progress. - The occupants may be frisked only if police have Terry grounds for a frisk. - The occupants may be searched for objects listed in the warrant only if: 1. The search warrant expressly confers this authority. 2. The search is incidental to a lawful arrest. 3. Police have probable cause to believe that objects of the kind listed in the warrant are secreted on their person.

Vehicle Limited Weapons Search

- The sole object of the search is weapons. - The officer must have reasonable suspicion that weapons are located inside a lawfully stopped vehicle. - The scope of the search is confined to the passenger compartment. - The intensity is limited to a cursory visual inspection of areas (and containers) inside the passenger compartment in which a weapon would fit.

Intensity of a Search

- The thoroughness of the search activity that is permitted. - Depending on the grounds for search authority, the permissible intensity can vary from a cursory inspection to a microscopic examination. - The intensity of a search may be no greater than necessary to discover the items for which police have search authority

Statement of the Miranda Rule

- This is activated whenever police interrogate a suspect who is then in custody. To procure an admissible confession, police must: 1. Warn the suspect of his or her Fifth Amendment rights. 2. Secure a knowing, intelligent, and voluntary waiver. 3. Cease interrogation if the suspect, at any time during the interrogation, manifests a desire to remain silent or to consult with an attorney.

Application of the Fourth Amendment to Technologically Assisted Surveillance: Fourth Amendment/ Statutory Requirements: None

- Use of publicly available surveillance devices like flashlights, telescopes, tracking devices, video surveillance cameras, helicopters, etc., to observe activities in open view.

Constitutional and Statutory Requirements for Video Surveillance: Fourth Amendment/ Statutory Requirements: None

- Video Surveillance of activities exposed to public view. - Visual surveillance of interactions between the target and a cooperating informant.

Constitutional and Statutory Requirements for Video Surveillance: Fourth Amendment/ Statutory Requirements: Search Warrant

- Video surveillance of interiors of homes and other locations not open to visual inspection from the outside. - (Separate Block) Long-term video surveillance of activities occurring inside the suspect's curtligage.

Sharing an apartment what can you consent to search for your roommate?

- any areas that you share

What three things can the Supreme Court declare unconstitutional under judicial review?

- case law - executive orders - laws under the legislation

Essentials for a Lawful Search

1. Act under a recognized source of search authority. 2. Confine the search activity to authorized search boundaries. - Grounds for search authority and search boundaries vary with the purpose of the search.

The Sixth Amendment right to counsel attaches when adversary judicial proceedings are commenced. This general occurs at the earliest of any of the following four events;

1. Arraignment 2. Grand Jury Indictment 3. Information 4. Preliminary Hearing

After a suspect invokes the right of counsel, questioning may resume only if:

1. Counsel is made available 2. The suspect reopens dialog 3. The suspect experiences a break in custody between the first and second interrogations, lasting at least 14 days.

Four Categories of Items that Police May Seize as Evidence

1. Fruits of a crime 2. Instrumentalties 3. Contraband 4. Mere Evidence

A search occurs under the Katz definition when police violate a suspect's reasonable expectation of privacy. This definition has two components

1. Police activity 2. An invasion of a suspect's reasonable expectation of privacy.

Requirements for a Plain Feel Seizure During a Terry Stop

1. Police feel an object in the course of a weapons pat down. 2. They immediately recognize the object as "feeling" something specific kind of contraband. 3. Other circumstances surrounding the encounter reinforce the belief that the object is what it feels like.

Entry To Prevent Imminent Destruction of Evidence

1. Probable cause to secure a search warrant. 2. An objectively reasonable belief that there are person inside who will destroy the evidence if they do not act right now.

Custody Indicators

1. Prolonged questionings 2. Isolated surroundings 3. The threatening presence of several police officers. 4. Weapon displays 5. Physical touching 6. Hostile demeanor 7. Intimidating tone of voice or language 8. Restriction on movements, handcuffs, or other forms of restraint. 9 Confronting the suspect with evidence of guilt

Scope and Intensity of Inventory Searches

1. Safeguarding valuables inside the vehicle. 2. Protecting law enforcement agencies against unjustified claims of loss or damage. 3. Locating potentially hazardous articles like weapons and flammables

Requirements for Executing the Warrant

1. Search warrants must be executed within a reasonably short time after their issuance. 2. After completing the search, the executing officer must prepare an inventory of the property seized, give the owner a copy and return the warrant, together with a copy of the inventory, to the judge who issued it.

Probable Cause for a Search Warrant

1. That a crime has been or is being committed. 2. That specific objects associated with the crime exist. 3. That they will be found in the place to be searched.

Restrictions on admission of Derivative Evidence

1. The fruits of statements obtained in violation of the due process free and voluntary requirement, the Fourth Amendment search and seizure clause, and the Sixth Amendment right to counsel are inadmissible. 2. The fruits of statements obtained in violation of the Miranda rule are admissible, despite the violation, unless the statement was involuntary or the police violation was deliberate.

Authority to Seize Evidence in Plain View

1. The initial intrusion that brings the officer in contact with the evidence is lawful. 2. It is immediately apparent to the officer that the object observed is criminal evidence or contraband. 3. The officer is able to gain physical access to seize it without violating the Fourth Amendment.

Admissibility turns on whether the illegal conduct of police caused the defendant to confess or whether his confession was the result of an independent act of free will. Courts consider the following three factors in deciding this:

1. The length of time between the violation and the confession. 2. The presence or intervening circumstances. 3. Purpose and flagrancy of the violation.

The Supreme Court has identified four factors for drawing line between the curtilage and an open field.

1. The proximity to the home 2. Whether the area is included within an enclosure surrounding the home. 3. Whether is is used for family purposes. 4. The steps taken by the residents to shield the area from view by passerby.

The Wiretap Act does not cover silent video surveillance, but a wiretap order is necessary to use video equipment that produces a soundtrack unless:

1. The suspect lacks a reasonable expectation of freedom from interception. 2. A participant consents

The Fourth Amendment Requirements for inventory searches are designed to ensure that they are used for this purpose and not as a subterfuge to search for evidence. For the search to be valid:

1. There must be a law or police department regulation authorizing the impoundment. 2. The search must be conducted according to established police department operating procedures.

Exigent Circumstances Exception

1. They have reason to believe that life or property is in imminent danger or that a serious crime is in progress. 2. They have reason to believe that evidence will be destroyed or removed unless they act immediately. 3. They are in hot pursuit of a felon who flees and take refuge inside.

Justifications for Performing the Search

1. To protect the officer's safety by removing weapons that could be used to assault the officer or effect an escape. 2. To prevent persons under arrest from destroying or concealing evidence.

There are four theories, in addition to consent, for searching motor vehicles without a warrant

1. Vehicular limited weapons search 2. Searches incident to the arrest of a motorist or passenger. 3. Searches based on probable cause to believe that the vehicle contains criminal evidence or contraband (referred as the motor vehicle expectation). 4. Inventory Searches

Arizona v. Hicks

A United States Supreme Court decision holding that the Fourth Amendment to the United States Constitution requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence related to the crime of arrest from tampering by the arrestee, in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured.

California v Greenwood

A case in which the Supreme Court of the United States held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

United Staes v. Robinson

A case in which the United States Supreme Court held that "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that Amendment.

Information

A formal accusation or complaint, filed by the prosecutor, charging a person with a designated crime. - It is used as a substitute for an indictment in ceratin classes of criminal cases.

Indictment

A formal written accusation made by a grand jury.

Preliminary Hearing

A hearing at which the judge finds that there is enough evidence to bind the accused for trial.

Wiretap Order

A judicial order, similar to a search warrant, that authorizes interception of a communication.

Grand Jury

A jury of inquiry empaneled to hear evidence presented by the prosecutor to decide whether the evidence is sufficient to hold the person for trial. - If the evidence is deemed sufficient, this type of jury will return an indictment.

Katz v. United States

A landmark United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search" of intangible property, such as electronic-based communications like telephone calls. The Court's ruling refined previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial intrusion with technology as a search, overruling Olmstead v. United States and Goldman v. United States.

Frisk

A limited weapons search conducted by patting down a suspect's outer clothing.

Abandon Property

A person who abandons property voluntarily relinquishes any reasonable expectation of privacy in that property. - This explains why rummaging through the contents of garbage cans that have been placed on the curb for collection is not a search.

Limited Weapons Search

A search conducted to disarm a suspect and remove weapons so that an officer can conduct a traffic stop, Terry investigation, execute a search warrant, etc. without fear for personal safety.

Inventory Search

A search conducted to make an inventory of property that police have taken into custody.

Apparent Authority

A search is valid based on this when police at the time of the search reasonably, but mistakenly, believe that the person giving consent possesses common authority over the premises.

The attachment of a tracking device to the suspect's property requires either:

A search warrant or an exception to the warrant requirement.

Facially Valid Warrant

A search warrant that appears regular on it face. - To be regular on it face, the warrant must describe with particularity the place to be searched and the items to be seized.

Seizure of Persons

A seizure occurs when a suspect submits to a police officer's show of legal authority or the officer gains physical control over him or her. - Separated into two classes -- investigative stops and arrests-- based on their scope and duration.

Seizure of Things

A seizure occurs when police commit a meaningful interference with a suspect's possessory rights in property.

Arrest

A seizure performed with the announced intent of making a formal arrest or one that lasts too long or it too invasive to be treated as an investigatory stop.

Anticipatory Search Warrant

A warrant that authorizes police to search for evidence that is not currently at the specified location, but is expected to be there at the time of the search.

Pat Down

A weapons frisk that is performed by patting down the person's outer clothing; reasonable suspicion that the person is armed or may be dangerous is necessary to perform a pat-down search.

Search Warrant

A written order issued by a judge or magistrate, in the name of the state, authorizing an officer to search a specified location for described objects that constitute evidence of a crime or contraband.

Arrest Warrant

A written order of a court, made on behalf of the government, directing an officer to arrest a person and bring him or her before a magistrate.

United States v. Dunn

An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home & the privacies of life" *4 factors - don't have to meet all for it to be considered curtilage: 1) proximity of area claimed to be curtilage, 2) whether area included within an enclosure surrounding the home, 3) nature of the uses to which the area is put, 4) "steps taken by the resident to protect the area from observation by people passing by"

Plain View Doctrine

An exception to the warrant requirement that allows police to seize articles without a search warrant describing them if the officer comes across the article while conducting a lawful search and its incriminating nature is immediately apparent to the officer.

Impeachment Use of Inadmissible Confessions

An inadmissible confession may be used for this only if: 1. The defendant takes the stand and testifies in her own behalf. 2. She tells the jurors a story different from the one she told the police 3. The confession was freely and voluntarily given. When a confession is admitted for these purposes, the jurors may consider it for the sake of evaluating the trustworthiness of the defendant's trial testimony, but not as evidence of guilt.

Device

Any apparatus used to monitor or record an oral, wire, or electronic communication.

What is derivative evidence?

Any evidence derived from a confession.

What kind of technologically assistance does not require a warrant?

Any public area that looks into open view

Container

Any receptacle that is capable of holding another object, such as luggage, boxes, bags, purses, briefcases, automobile glove compartments.

Open View

Anything a police officer is able to detect through the use of one or more of his senses from a vantage point where the officer is lawfully present is said to be in this. - Observation of matters in open view is not a search.

Prosecutors, not the police, are...

Are primarily responsible for applying for and overseeing implementation of wiretap orders.

Scope of a Search

Areas police have authority to search. - In searches under the authority of a search warrant, the scope of a search is determined by the warrants description of the place to be searched.

Wire Communication

Communications containing the human voice that travel through wires at some point in their transmission.

What is the McNabb-Mallory Rule?

Confession obtain that violated federal procedure prompt to arraignment.

Due Process Free and Voluntary Requirement

Confessions are not voluntary and will be suppressed when: 1. Coercive pressures exerted by the government. 2. Induce the making of a statement the suspect would not otherwise have made.

Legal Hurdles That Confessions Must Pass in Order to Be Admissible as Evidence

Confessions that fail to satisfy any of the following requirements are inadmissible as evidence of guilt. These include: 1. The due process free and voluntary rule 2. The Amendment exclusionary rule 3. The Fifth Amendment privilege against self-incrimination 4. The Sixth Amendment right to counsel - Confessions may also be suppressed for violating federal and state delay in arraignment statutes.

Protective Sweep

Cursory visual inspection of closets and other spaces immediately adjoining the place of arrest in which persons posing a danger to the officer could be hiding; permitted whenever the police arrest someone inside a dwelling.

Formal Charges

Depending on local procedures, this may may be initiated by an arraignment, preliminary hearing, indictment, or information

Requirements for Obtaining E-mail, Voice Mail, and Text Messages

Different statutory schemes apply to email, depending on when it is intercepted. - The Wiretap Act governs the interception of email during the transmission stage while the message is traversing the Internet. - The Stored Wire and Electronic Communications and Transactional Records Act governs access to email after the message has reached its intended destination and is held in electronic storage. - The Stored Wire and Electronic Communications and Transactional Records Act also governs acess to voice mail, text messages, and transactional records.

Impeachment

Discredit a witness' testimony by establishing that witness made a prior inconsistent statement, had a reputation for untruthfulness was biased was previously convicted of a felony, etc.

Physical Intrusion into a Constitutionally Protected Location: Personal Effects

Encompasses handbags, briefcases, packages, luggage, and other closed containers, and vehicles among other things

Physical Intrusion into a Constitutionally Protected Location: Papers

Encompasses letters, journals, records, films, and other private documents.

Derivative Evidence

Evidence that is inadmissible because it derives from an illegal confession or other illegally obtained evidence.

Fruits (of an unconstitutional search or seizure)

Evidence uncovered during an unconstitutional search or seizure, plus any further evidence that is later derived from discovered as result of that evidence.

Reasonable Expectation of Privacy

Factor that determines whether police activity constitutes a search or an interception.

What amendment protects against self-incrimination?

Fifth Amendment

An example of plain sight enhancements

Flashlight - anything in common use

The constitutional amendment that protects against unreasonable search and seizure?

Fourth Amendment

Kyllo v. United States

Held in a 5-4 decision that the use of a thermal imaging, or FLIR, device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant.

Chimel v. California

Held that police officers arresting a person at home could not search the entire home without a search warrant, but police may search the area within immediate reach of the person.

Oral Communication

Human voice communications that travel through the air by sound waves. - Face-to-face conversations are most common example. - The communication must be spoken under circumstances that create a reasonable expectation of freedom from interception in order to be protected by the Wiretap Act.

Miranda v. Arizona

In a 5-4 majority, the Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights, but voluntarily waived them.

Foreign Intelligence Information

Information that relates to actual or potential attacks by foreign governments or their agents, foreign spying activity inside the United States, domestic activity of international terrorist organizations, or the national defense and security of the United States.

In booking, emptying pockets or impounding a car is considered what type of search that does not have any Fourth Amendment requirements?

Inventory Search

Berkemer v. McCarty

Is a decision of the United States Supreme Court which ruled that, in the case of a person stopped for a misdemeanor traffic offense, once they are in custody, the protections of the Fifth Amendment apply to them pursuant to the decision in Miranda v. Arizona 384 U.S. 436 (1966). Previously, some courts had been applying Miranda only to serious offenses.

Fourth Amendment Requirements for Seizing Property: Impound the Property

Legal authority to impound

Eavesdropping

Listening with the unaided ear to the conversations of others.

If you are arrested in your house with without a warrant what area can the officer search?

Lunge area: the immediate area of the suspect

Detection Devices: Fourth Amendment Requirements: Compliance with the administrative search exception to warrant requirement or individualized suspicion

Magnetometers (metal detectors) and X-ray scanning machines

Definition of Custodial Interrogation

Miranda safeguards must be observed whenever police interrogate a suspect who is then in custody. 1. Custody requires a formal arrest or a restraint of the suspect's freedom of action to the degree associated with a formal arrest. 2. An interrogation occurs when the police ask investigative questions or engage in other words or actions that they should know are reasonably likely to elicit an incriminating response from the suspect.

Seizable Evidence

Objects that police have probable cause to believe are connected to a crime. - There are four categories: 1. The Fruits of a crime 2. Instrumentalites used in its commission 3. Contraband 4. Mere Evidence

Impoundment

Occurs when police take custody of a person's property for reasons other than use as evidence. - Examples include taking custody of an arrestee's belongings incident to jailing, towing abandoned or illegally parked car to police lot.

Search

Occurs when the police perform acts that intrude on a suspect's reasonable expectation of privacy. - Can occur either by: 1. Physically intruding into a constitutionally protected location. 2. Technological invasions of privacy.

Open Fields

Outdoor spaces surrounding a home that lie beyond the curtilage. - Not protected by the Fourth Amendment.

Factors Relevant to Voluntariness

Physical brutality and threats of violence render a confession involuntary as a matter of law. When the pressures are less extreme, voluntariness is determined by examining the totality of circumstances surrounding the confession, with emphasis on three factors: 1. The pressures exerted by the police 2. The suspect's degree of susceptibility 3. The conditions under which the interrogation took place.

Advice on Rights and Waiver

Prior to any questioning, I was advised that I have the right to remain silent, that whatever I say can or will be used against me in court of law, that I have a right to speak with a lawyer and have a lawyer present during questioning, and that, if I cannot afford a lawyer, one will be appointed for me, I was further advised that, even if I sign this wavier, I have the right to stop the interview and refuse to answer further questions or ask to speak with an attorney at any time I so desire, I fully understand my rights. I am willing to answer questions and make a statement. I do not wish to consult with a lawyer or to have a lawyer present.

How much evidentory requirements does a police officer needed to conduct a search with or without a search warrant?

Probable Cause

Contraband

Property that it is unlawful to possess, such as illegal drugs, illegal weapons, and stolen property.

Custodial Interrogation

Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Investigative Questioning

Questioning of a suspect who is not in custody or charged with the crime to which the questions relate.

Interrogation

Questioning that is designed to elicit an incriminating response. - It also includes actions that are the functional equivalent of a question, such as telling the suspect that an eyewitness has identified him or her.

When does a search occur with a person?

Reasonable expectation of privacy

Corpus delicti

Requirement that the prosecution put on proof, independent of a confession, that the crime charged was in fact committed by someone, before a confession may be introduced in evidence.

McNabb-Mallory Rule (Delay in Arraignment)

Requires suppression of confessions obtained during a period of unnecessary delay in presenting the suspect to a magistrate for arraignment.

Full Search

Search conducted to discover incriminating evidence.

If a person during questioning wants counsel what do you do?

Stop questioning immediately until counsel is present.

The McNabb-Mallory rule as modified by 3501 requires:

Suppression of confessions given more than six hours after an arrest during a period of unnecessary delay in presenting the defendant for arraignment, but immunizes confessions given during the first six hours being challenged on these grounds.

Application of the Fourth Amendment to Technologically Assisted Surveillance: Fourth Amendment/ Statutory Requirements: Nothing

Surreptitious audio or video surveillance of contacts between the suspect and a cooperating informant.

Fruits (of a crime)

T angible objects derived through or in consequence of the commission of a crime, such as stolen money or property or funds obtained from the sale of stolen property

Investigatory Detention

Temporary, limited seizure made for the purpose of investigating suspicious circumstances.

Investigatory Stop

Temporary, limited seizure made for the purpose of investigating suspicious circumstances.

Police are not required to obtain an express wavier for Miranda rights before commencing interrogation...

The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions.

Arraignment

The defendant's initial appearance before a committing magistrate. - During this appearance, the defendant is read the charges, informed of the right to counsel, and given an opportunity to request appointment.

Probable Cause to Search

The degree of factual certainty needed for the issuance of a search warrant. - Exists if a prudent person would conclude that specific objects linked to a crime will be found at a particular location.

Probable Cause to Arrest

The degree of factual certainty needed to justify an arrest. - Exists when an officer is aware of facts and circumstances sufficient to warrant a reasonable person in believing a crime has been committed and the person to be arrested committed it.

Probable Cause to Seize

The degree of factual certainty needed to seize an object as evidence. - Exists if a prudent person would conclude that the object in question is associated with criminal activity.

The Exclusionary Rule

The exclusion of evidence is a criminal defendant's remedy for police violations of his or her constitutional rights.

Curtilage

The grounds and outbuildings immediately surrounding a dwelling, which are regularly used for domestic and family purposes, such as the yard and garage.

Procedural Requirements for a Wiretap Order

The procedural requirements for a wiretap order exceed Fourth Amendment requirements for an ordinary sear warrant the Wiretap Act: - Limits the crimes for which wiretap orders may be issued. - Requires approval by a high-ranking official within the Justice Department before the application may be submitted to the court. - Requires proof that traditional investigative techniques have been tried and failed, appear unlikely to succeed, or too dangerous to try - Requires establishment of probable cause to believe that: 1. A person is committing a crime for which an interception order may be issued. 2. The targeted facilities are being used in connection with that crime. 3. An interception will produce communications relevant to that crime. - Limits the duration of wiretap orders to a maximum of 30 days or attainment of the authorized objective, which occurs first. A fresh application is required for an extension. - Requires that wiretap orders be executed so as to minimize intrusions into communications not related to the investigation. - Limits disclosure and use of communications intercepted under a wiretap order to: 1. Furtherance of the investigation 2. National defense and security 3. Giving testimony in court

Custody

The restraint of a suspect's liberty to the degree associated with a formal arrest. - This determination is made from the point of view of a reasonable person in the suspect's position.

Where the prosecution shows that adequate warnings were given and understood by the suspect...

The suspect's subsequent uncoerced statement establishes an implied wavier of Miranda rights.

Detection Devices: Fourth Amendment Requirements: Search Warrant

Thermal sensors aimed at a home.

A seizure occurs when

They interfere with a suspect's possessory rights in property

Fourth Amendment Exclusionary Rule

This Fourth Amendment rule requires suppression of confessions that are causally connected to a violation of the suspect's Fourth Amendment rights (i.e., illegal Terry stop, arrest, or search). - Further, when a confession is tainted beyond uses, derivative evidence that would not have been discovered without the confession will also be suppressed.

Instrumentalities

Tools, vehicles, etc., used to commit a crime.

Electronic Communication

Transmissions of matters other than the human voice, such as written words, signs, signals, symbols, images, or other data transmitted over a wide range of mediums, including wire, radio, electromagnetic, and photo-optical.

Exclusionary Rule excludes evidence obtain unconstitutionally obtained at what part of the criminal process?

Trial

Interception

Use of a device to monitor or record the contents of an oral, wire, or electronic communication.

Constitutional and Statutory Requirements for Video Surveillance: Fourth Amendment/ Statutory Requirements: Video Aspects must comply with the Fourth Amendment and audio aspects with the Wiretap Act

Video surveillance that produces a soundtrack.

What is a Frisk?

a pat-down for weapons

When is Miranda warnings given?

before questioning

Waiver to Miranda rights

must obtain a knowing, voluntary, and intelligent waiver from the suspect

A search occurs when

police intrude on a suspect's reasonable expectation of privacy