EXAM 2: SEARCH AND SEIZURE
When does a search occur?
A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.
What is a seizure of property?
A seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property by the government.
Identify the permissible scope of a search Inventory of a person's property
A vehicle inventory is not a search for evidence or contraband. It is a procedure peace officers use to account for personal property in a vehicle that is being impounded or stored. Necessary conditions To inventory a vehicle: •the vehicle must be in the lawful custody of law enforcement •the officer conducts the inventory pursuant to a standardized agency policy Scope of search The courts have made it clear that a standardized agency policy may be very broad regarding vehicle inventories, permitting examination of any area where valuable or dangerous items are commonly kept. This may include, but is not limited to: •under the seats •glove compartments, consoles •the trunk, closed containers Purpose of an inventory A vehicle inventory should never be undertaken for the purpose of finding evidence or contraband, but rather only for taking note of personal property. The purpose of a vehicle inventory is to protect: • the property of a person whose vehicle has been impounded or stored • the government agency from false claims of loss The decision to impound and/or inventory must be made in good faith for lawful reasons such as, but not limited to: • the driver (sole occupant) is taken into custody • the vehicle, involved in a traffic accident, cannot be driven • the vehicle must be moved to protect it or its contents from theft or damage• circumstances which require removal (e.g., vehicle as a traffic hazard, stolen vehicle, etc.) Authority to impound: Assuming the vehicle is lawfully in police custody, the officer always has legal authority to impound or store it and, therefore, to inventory it. However, depending on agency policy, there may be occasions where the officer may choose to release the vehicle to a validly licensed passenger or other person. Personal possessions: If a vehicle is to be inventoried, but the driver or other occupant requests possession of some object from inside the vehicle (e.g., purse, clothing, briefcase, etc.), the searching officer may pat the item down for weapons for the officer's own safety before handing it over. Whether or not the item still must be inventoried as an object that was in the vehicle at the time the vehicle was impounded or stored will depend on agency inventory procedures. Standardized procedures: Agency procedures for conducting a vehicle inventory will be considered sufficiently standardized as long as:• the agency has an established routine• all officers know about the routine• all officers are supposed to follow the routine when conducting vehicle inventories Officer discretion: The courts have recognized that standardized procedures may leave some discretion in the hands of a field officer whether or not to open a given container. However, this discretion cannot be unlimited and must be based on concerns related to the purposes of an inventory Repossessed vehicles: If a licensed repossession agency has already repossessed a vehicle and completed the statutorily required inventory, peace officers may examine and seize inventoried items without a warrant if they have reason to believe the items are connected to a crime being investigated.
Identify the permissible scope of a search of Incidental to arrest search
When a suspect is lawfully arrested and taken into physical custody, a limited authority exists for peace officers to conduct a warrantless search of the suspect's person, also of the property and area within the suspect's immediate control. Necessary conditions A search incident to arrest may be conducted when: •probable cause for a lawful arrest exists •the suspect is taken into custody •the search is contemporaneous with the arrest Scope of the search A search incident to a custodial arrest may include: • a full search of the arrestee's person • containers on the arrestee's person • the nearby physical area that was under the immediate control of the arrestee (sometimes referred to as "within arm's reach") Custodial arrest: To conduct a lawful search incident to arrest, the person must be taken into custody. A custodial arrest is one in which the person will be transported to another location or facility, such as a station, jail, detox center, juvenile hall, or school. A search incident to arrest is not permitted when the person is merely cited and released. Contemporaneous search: To be legal, the search must be contemporaneous with the arrest. That is, the search must be conducted:•at or near the time of arrest, although either can precede the other•at or near the place of the arrest•while the arrestee is still on the scene Protective sweeps: A protective sweep is a brief search to look for individuals only. If peace officers are already lawfully inside or outside a house and have a specific factual basis for believing there may be other people inside who pose a danger to them, the officers can conduct a protective sweep. Protective sweeps are limited to spaces immediately adjoining the area of an arrest:• where another person could be hiding• from which an attack could be immediately launched It is illegal to sweep into areas beyond those "immediately adjoining" the arrest location, unless the officer has reasonable suspicion, based on articulable facts, that there may be someone there who poses a danger to the officer.
To establish probable cause to search officers must
be able to articulate how and why they have a fair probability to believe: •a crime has occurred or is about to occur •evidence pertaining to the crime exists •the evidence is at the location they wish to search
What is expectation of property?
is a person's state of mind demonstrated by affirmative action designed to protect their privacy
Identify the requirements and scope of both a lawful "stop" and lawful "frisk"
STOP Police can stop a person based on "articulable and reasonable suspicion" that the person "is committing, has committed or is about to commit a crime," even when there is no probable cause for an arrest. Terry Stop -temporary detention, scope is lawful as long as the police diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly. In Nevada, no longer than 60 minutes. NRS 171.1231 -Arrest if probable cause appears. At any time after the onset of the detention... the person so detained shall be arrested if probable cause for an arrest appears. FRISK- Investigative Detention Just because stop justified, doesn't mean frisk is justified Must be additional particular facts to support reasonable suspicion that suspect may be armed. Informant tip: Defendant behaving furtively Knowledge of defendant's history -guns Nature of crime reported. For a cursory/frisk/pat search to be lawful: •the person must be lawfully detained for an investigative purpose •the searching officers must be able to articulate specific facts which caused them to reasonably believe the person is dangerous or may be carrying a weapon The scope of a cursory/frisk/pat search is limited to outer clothing for weapons or potential weapons only. Once the officer conducting the search realizes an object is not a weapon, the officer cannot further manipulate the object; the officer must move on. Any additional feeling, grabbing, or manipulating of the item is outside the scope of a cursory/frisk search and will be considered an illegal search. An officer need not be absolutely certain that the person is armed or potentially dangerous. Contraband: If, during a lawful cursory/frisk/pat search for weapons, an item is discovered that is immediately recognized as contraband (based on plain sight, smell, or touch), the officer may seize it. If the person is placed under arrest, the officer may then conduct a full search incident to the custodial arrest. Containers: If the officer comes across a container on the person during a cursory/frisk/pat search, the officer is entitled to seize it and open it only if it is reasonable to believe it can be used as a weapon or that it might contain a weapon. Reaching inside: During a cursory/frisk/pat search, an officer may reach inside a subject's clothing or pockets to inspect an object further only if:• the object reasonably felt like a weapon or something that could be used as a weapon•the subject's clothing is so rigid or heavy that the officer could not rule out the possibility of a weapon or potential weapon Discovery: If an officer discovers an object during a "Terry" search which the officer believes is a weapon or a dangerous instrument which could be used as a weapon, the officer has a right to seize it from the person. The officer may hold the weapon or potential weapon until the detention is concluded. If there is no probable cause to make an arrest, then the item must be returned to the subject. Transporting a passenger: Peace officers may conduct a cursory/frisk/pat search of any person the officers have a duty or are obligated to transport before permitting the person to ride in a law enforcement vehicle. If officers are not obligated to transport the person, a cursory/frisk/pat search is permitted only if the officer informs passengers that: • they have the right to refuse the ride •if they accept the ride, they must first consent to a cursory/frisk/pat search
What is overflight?
- Is the flight of a plane or helicopter over a given area. - the protections of the Fourth Amendment do not apply, as long as the aircraft is:at an altitude permitted by FAA regulationsbeing operated in a "physically nonintrusive manner"
What are the factors of the objective test in the Exclusionary rule?
- Officer's subjective reasons for stop, arrest, or search don't matter - Only objective reasonableness of officer's actions are relevant in suppressing or allowing evidence
When does seizure of persons occur?
- a peace officer physically applies force or - a person voluntarily submits to a peace officer's authority 12
When can expectation of property exist?
A reasonable expectation of privacy can exist almost anytime and anyplace as long as: •individuals have indicated that they personally (subjectively) expect privacy in the object or area •their expectation is one which society is prepared to recognize as legitimate
Identify the permissible scope of a search of Searching abandoned property.
Abandoned property: If an item has been abandoned by the owner, the owner has relinquished any expectation of privacy over the item. The Fourth Amendment does not protect articles or an area that has been abandoned by its owner. NOTE: Trash placed in a position for pick-up outside the curtilage of the residence is considered abandoned. Lawful access: Simply because an officer can see an object in plain view from a lawful location does not automatically mean the officer may legally enter private property without a warrant to seize it, even if the object is obviously contraband or evidence of a crime. The officer also needs lawful access. Lawful access to private property is most commonly obtained when: • the officer's entry is based on consent • the officer's entry is based on exigent circumstances, for example, a reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant • the officer has lawfully entered the area for some other purpose
What is protected in the 4th amendment?
An individual's "legitimate and REASONABLEEXPECTATION OF PRIVACY
Define the process for obtaining an anticipatory search warrant
Anticipatory warrants require the magistrate to determine: - that it is now probable that; - contraband evidence of a crime or a fugitive will be on a described premises - when warrant is executed Two requirements: - if the triggering condition occurs - there is probable cause to believe the triggering will occur To establish PC, you must show a fair probability of 3 things; 1. A crime occurred 2. Evidence of that crime exists and; 3.The evidence is located at the location to be searched
To establish probable cause to arrest officers must
Articulate probable cause that: - A crime has been committed, and the individual to be arrested committed that crime.
Identify the circumstances in which peace officers may detain occupants of the premise without an arrest warrant
Detaining occupants while search warrant is pending:If the place being secured is occupied when peace officers enter, they will need probable cause to arrest if they take the suspect away or keep the suspect there for an unreasonable period while the warrant is obtained. Without probable cause to arrest an individual, peace officers are only entitled to detain the suspect temporarily while they determine the person's involvement and connection to the place to be searched. To establish probable cause to search, peace officers must be able to articulate how and why they have a fair probability to believe: •a crime has occurred or is about to occur •evidence pertaining to the crime exists •the evidence is at the location they wish to search
Identify the process for securing, executing and returning (including time requirements) for a search warrant
EXECUTING The 10-day time limit means that peace officers have 10 days within which to execute the warrant, beginning with the day after the warrant is issued and running until midnight of the 10th day, with no exceptions for weekends or holidays. The warrant must direct that it be served between the hours of 7 a.m. and 7 p.m., unless the magistrate, upon a showing of good cause therefor, inserts a direction that it be served at any time. Knock and Notice: Before entering a private dwelling to execute a search warrant, officers must comply with the requirements of knock and notice. Wait/refusal requirement: When executing a search warrant, there is a specific requirement that before forcing entry, peace officers must be refused admittance. Refusal may be based on: •a verbal statement •individual conduct •the passage of a reasonable amount of time Forcible entry: If the knock and notice requirements are met, including refusal, peace officers may legally break in or force entry into premises to execute a search warrant. Peace officers may use a false identity, a ruse or trick to obtain consent to enter as long as they already have a valid search warrant. Presenting the warrant upon entry: If the occupant is present, peace officers should show the occupant the original warrant and give the occupant a copy. If no one is home, a copy of the warrant may be left in a conspicuous place. Likewise, officers must leave behind a detailed list of the property taken, whether anyone is home or not. Scope of the search: During a search authorized by a search warrant, officers are limited by the information specified in the search warrant. (This is known as the scope of the search.)Search warrants must include specific: •statutory grounds for issuance •identification of the area(s) or person(s) that may be searched •identification of the item(s) to be seized Detaining Persons on the Premises: Peace officers may detain and frisk/pat search persons who are present and have demonstrated a connection with the premises. Examples of such a connection include a person who: •is already inside the premises •has a key to enter the premises freely •enters the premises without knocking Containers: When a warrant authorizes the search of a residence, vehicle, or person, it automatically authorizes the search of anything, place, or container inside that residence or vehicle, or on that person, where the object of the search might be located. If, however, the warrant was not for a general area, but instead was for a particular container, that container would also have to be described as completely as possible in the warrant. Nexus Rule Under the nexus rule, officers may seize items not listed in the warrant when:• the items are discovered while the officers are conducting a lawful search for the listed evidence, and• they have probable cause to believe the item is contraband, evidence of criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal RETURNING The return of the warrant means returning the warrant and a written inventory of the property taken to the magistrate. A late return will not normally invalidate the warrant or result in suppression, particularly if it happens unintentionally, unless the defendant can show prejudice.
Define the "exclusionary rule"
Evidence seized in violation of the Fourth Amendment will be excluded. The theory is that the exclusionary rule will "deter unlawful police conduct by removing the incentive to act unlawfully If there is a 4th Amendment violation by police, the evidence thrown out is not only that which is immediately recovered, but ALL evidence that derives directly from it. Exceptions: - Inevitable Discovery Doctrine - If the evidence would have been discovered anyway, it will not be suppressed. - Burden on prosecution to show that the police "would have" discovered the evidence by lawful means, not a retrospective of what they "could have" done - Good Faith Exception
Related to PC, what is Direct Evidence?
Evidence that proves a fact directly, without an inference or presumption (e.g., the sale of a controlled substance to an undercover officer).
Related to PC, what is Circumstantial Evidence?
Evidence that proves a fact indirectly, that is, personal knowledge or observations from which deductions must be drawn by the jury or court (e.g., partial six-pack of beer found on the car seat supports inference that someone in the car has been drinking).
Identify the permissible scope of a search of Exigent circumstances search
Exigent circumstances means an emergency situation requiring swift action to prevent: • imminent danger to a person's life or safety • serious damage to property • imminent escape of a suspect • imminent destruction or removal of evidence Scope of a search Under exigent circumstances, the primary purpose of the officer's entry is to attend to the emergency situation. After entering the premises, officers may conduct a search only if it is reasonable to believe a search is necessary to secure the emergency. Officers who are conducting a lawful search based on exigent circumstances may seize any item in plain view if there is probable cause to believe the item is contraband or evidence of a crime. Exception to knock and notice When exigent circumstances exist, peace officers are normally not required to comply with knock and notice procedures before entering. Imminent danger to life: If an officer reasonably believes a person (victim or other person), inside an area that would be considered private property, may be injured or ill and in immediate need of help, the officer may enter the property without a warrant. Imminent danger to property: If an officer reasonably believes there is a need to enter a private area in order to protect the property of the owner or occupant, the officer may enter without a warrant. Imminent escape: It is lawful for peace officers to enter private property without a warrant in order to prevent the escape of a suspect, especially if the suspect is armed and dangerous or has just committed a violent felony. Destruction of evidence: Peace officers may enter premises without a warrant or consent when there is immediate danger of destruction or removal of crime-related evidence. Re-entry: Following the exigent circumstance, peace officers must vacate the premises within a reasonable amount of time and may not reenter unless they obtain a search warrant or consent. Creating an exigency Peace officers may not use exigent circumstances as an excuse for a warrantless entry if they have created the emergency unnecessarily by their own conduct.
Identify the permissible scope of a search of Plain view search
In a constitutional sense, when an officer sees an item in plain view, from a place the officer has a lawful right to be, no search has taken place. The owner or possessor obviously has no reasonable expectation of privacy for items which are in plain view. Without an expectation of privacy, the owner or possessor has no Fourth Amendment protection. Peace officers must meet certain requirements before an item in plain view may be seized legally and used as evidence. Peace officers must have: •probable cause •a lawful right to be in the location •lawful access to the item
What is open fields?
Means outdoor real property, outside the curtilage of the residence.
What are the factors of the Good Faith Exception in the Exclusionary rule?
Officer acts with "good faith" - belief that he is acting lawfully - Relies on statute that is later overturned - Relies on ruling of judge
Identify the permissible scope of a search of Open fields search
Open fields means outdoor real property, outside the curtilage of the residence.Open fields are areas which are so open to public view that the owner or possessor is deemed to have implicitly invited the general public to view the area. Because of the lack of a reasonable expectation of privacy in open fields, the protections of the Fourth Amendment do not apply. NOTE: Open fields do not have to be either open or real fields to qualify
Identify the permissible scope of a search of Consent search
Peace officers may search those places and things they reasonably believe the consenting person authorized them to search. As long as the search remains within the scope given, officers may seize any crime-related evidence which they discover. If the consenting person expressly or implicitly restricts the search to certain places or things, officers must honor those restrictions. If the officers tell the consenting person what type of evidence they are searching for, the scope of the search must be limited to those places and things in which such evidence may reasonably be found. Example: Consent to search inside a suitcase includes consent to look inside all the compartments of the suitcase. Voluntary consent Voluntary consent means an act of free will and not the result of duress or coercion. If consent is merely a submission to an assertion of authority or coercion, the consent is not voluntary. Peace officer conduct Peace officers may inadvertently undermine the voluntariness of consent by their conduct. Officers who seek consent must make it clear that they are requesting permission to search --not demanding it. Express Consent... vs Implied Consent... occurs when the consenting person clearly authorizes the search either orally or in writing. (express) occurs when the consenting person authorizes the search by actions or behavior indicating that consent was given. requires no inference to supply the full meaning. (express) must be reasonably inferred. Right to refuse The courts have ruled that it is not legally necessary for officers to advise potential consenters that they have a constitutional right to refuse consent of a warrantless search.
Identify examples of situations and circumstances that are exceptions to a search warrant requirement
Plain View Seizures: Peace officers do not have to blind themselves to what is in plain view if an item they see can be associated with a crime or criminal behavior, simply because they do not have a warrant. Peace officers must have: •probable cause •a lawful right to be in the location •lawful access to the item Probable Cause for seizure: Even though peace officers need not appear before a magistrate, they still must have enough facts to provide probable cause, that is, a fair probability that the item in plain view is contraband or evidence of a crime. The incriminating character of the item must also be immediately apparent to the officer. Observation from a lawful location: Peace officers must have a lawful right to be at the location from which they initially observe the item. That is, the observation must be made from a vantage point that does not violate an individual's reasonable expectation of privacy. Surveillance: It is not a search for peace officers to conduct surveillance of private premises or to follow people who leave the premises, as long as the observations are made from a place where the officer has a right to be. Videotaping a suspect's activities is a form of surveillance. Sensory aids: If officers are in a place where they have a lawful right to be, and if they use a device that is nonintrusive to aid or enhance their observations, their observations of items or areas in plain view are lawful, despite the enhancement. (Dog, flashlights, night vision, binoculars) Abandoned property: If an item has been abandoned by the owner, the owner has relinquished any expectation of privacy over the item. The Fourth Amendment does not protect articles or an area that has been abandoned by its owner. NOTE: Trash placed in a position for pick-up outside the curtilage of the residence is considered abandoned. Lawful access: Simply because an officer can see an object in plain view from a lawful location does not automatically mean the officer may legally enter private property without a warrant to seize it, even if the object is obviously contraband or evidence of a crime. The officer also needs lawful access. Lawful access to private property is most commonly obtained when: • the officer's entry is based on consent • the officer's entry is based on exigent circumstances, for example, a reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant • the officer has lawfully entered the area for some other purpose • cursory/frisk/pat down • consent searches • searches pursuant to exigent circumstances • searches incident to custodial arrest • probation/parole searches
What s objective reasonableness?
Refers to whether society is prepared to recognize the individual's expectation as reasonable.
Identify the elements required to establish "reasonable suspicion"
That the person "is committing, has committed or is about to commit a crime," even when there is no probable cause for an arrest. For Frisk Defendant behaving furtivelyKnowledge of defendant's history -gunsNature of crime reported
Identify the permissible scope of a search of Mobile vehicle
The Fourth Amendment's protection against unreasonable searches and seizures extends to a person's vehicle and property inside the vehicle. However, the courts have created several exceptions to the Fourth Amendment's warrant requirement because of a motor vehicle's potential mobility and reduced expectation of privacy. For a search of a vehicle to be legal under the probable cause exception: • the vehicle must have been lawfully stopped, or otherwise be lawfully accessible • the officers must have enough facts, knowledge, training, or experience to provide probable cause that the item they are seeking will be found inside the vehicle Scope of the search The scope of a vehicle search based on probable cause depends on the item or object peace officers are searching for. Officers may search any part of a motor vehicle, or anything inside the vehicle, as long as what they are searching for might reasonably be located there. This includes, but is not limited to: •the passenger compartment •the passenger compartment •the glove compartment •the hood •the trunk •any closed personal containers (including locked containers) Time of search Under the probable cause exception, it is not necessary that the search of the vehicle take place contemporaneously with the vehicle stop (e.g., on the roadside at the time of the stop). If peace officers have probable cause to believe the item they are looking for is inside a vehicle, they are entitled to open and search any closed, personal container within the vehicle which might reasonably contain the item. (This rule also applies to locked containers.)Probable cause to search a container may be established through the officer's sight, smell or touch, or by the container's shape, design, or the manner in which it is being carried. 180
Related to PC, what is reasonable inference?
The act of drawing a conclusion from a fact; it is similar to making a presumption (e.g., seeing smoke and inferring there is a fire).
What is curtilage?
The relatively small and usually well-defined area immediately around a residence to which the occupant has a reasonable expectation of privacy.
