Crim Law extras

Greenwood - NOT A SEARCH

Trash

Other factors that may be considered when determining whether consent to a search was voluntary

1. Application of force 2. Intimidating movements 3. Brandishing of weapons 4. Overwhelming show of force 5. Blocking of exits 6. Threats 7. Commands 8. Authoritative tone of voice

New York v Burger

Warrantless inspection of commercial premises is permitted under situations where there is a public policy regulating an industry which requires close regulation. Public policy is used in the stead of a warrant.

Carroll v. US (1925)

Warrantless searches are legal if they are reasonable - probable cause established

Those present when a search warrant is executed (non-vehicular)

1. Cannot be searched without PC particularized to that person 2. May be detained in the immediate vicinity of the premises depending on circumstances 3. May not be detained when a distance beyond the immediate vicinity of the property being searched just to ensure the safety and efficiency of search

Three levels of police interaction

1. Consensual encounter (no requirement) 2. Stop (RS); may frisk if RS to believe person armed and dangerous 3. Arrest (PC); may search incident to arrest

Terry Stops

Allowable brief detention or seizure for purpose of investigating suspicious conduct -Evidentiary Standard: reasonable suspicion. require specific and articulable facts that inform officer's belief that criminal activity is present. Objective test.

Was the search properly executed by police?

(1) Did officers comply with terms and limitations? ---MD - warrant must be executed within 15 days of issuance (2) Did officers comply with "knock and announce" rule? unless officer reasonably believes it would be: (1) futile OR (2) dangerous OR (3) would inhibit the investigation ---MD - judges cannot issue a "no knock warrant"

Smith - NOT A SEARCH

Pen Register

stop and frisk

Police can stop and frisk a suspect if he/she is likely to be armed.

Miranda v. Arizona

Police must read a suspect their rights when in custody and in interrogation.

Illinois v Rodriguez

Police must reasonably believe that permission has been given by a legitimate authority of the area being searched.

U.S. v. Jones

Police putting a GPS device on D's vehicle and tracking D's movements for more than 28 days constituted a search. Katz did not repudiate trespass. Analysis should simply add reasonable expectation of privacy to trespass.

United States v. Knotts

Police used beeper. *Held: lawful because information from beeper was obtained outside the home.

New Jersey v. T.L.O.

Principal caught student smoking. Principal searched student's purse. Search valid under 4th Amendment so long as it was reasonable. Balancing student's privacy interest vs. school's interest in maintaining discipline. Do not need 38 but do need reasonable suspicion.

Amendment V

Privilege against self-incrimination Right of due process in criminal cases

What is the one thing that an officer must have to conduct a full search with or without a search warrant?

Probable Cause

What is the basis for the vehicle or mobile exception?

Probable cause

Camara v Municipal Court

Warrants are needed for inspections if consent is not given, but the warrants issued would not rely on individual circumstance, but rather on the reasonableness of the public policy, generally.

United States v Watson

When an arrest occurs in the presence of a prime, or when there is probable cause that a crime has been committed, a warrantless arrest is permitted.

NJ v. TLO

facts - The vice-principal of a school searched a students bag and found evidence that she was dealing marijuana. holding - "[S]chool officials need not obtain a warrant before searching a student who is under their authority."

consent exception

permits police to make warrantless search or seizure, depending on what D consented to no PC or warrant required voluntariness - not coerced (TOC) authority - 3rd party consent scope

Caballes (compare with Jardines in supplement)

"Conducting a dog sniff does not change the character of a traffic stop if it is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent's constitutionally protected interest in privacy."

Define "curtilage."

"Curtilage" refers to the area immediately surrounding and adjacent to a home. Like the home, it is protected by the 4th Amendment.

Exigent Circumstances (three types)

(1) Evanescent Evidence: evidence that would dissipate/disappear in time it would take to get warrant (fingernail scrapings, etc.) (2) Hot Pursuit: allows police to enter home of suspect or 3rd party in pursuit of fleeing felon (3) Emergency Aid Exception: may enter house if objectively reasonable basis for believing person inside house is in need of emergency aid or to prevent injury

Plain View: (3 requirements)

(1) Lawful access to place where item can be plainly seen (2) Lawful access to item searched (3) The criminality of item must be immediately apparent

Was the search or seizure of an area or item protected by the 4th amendment?

(1) Persons (2) Houses: includes hotel rooms and curtilage (area of domestic use immediately surrounding house like front porch or fenced yard) (3) Papers: personal correspondence (4) Effects: personal belongings, such as purses and backpacks

Is the warrant supported by probable cause and particularity?

(1) Probable Cause: requires proof of fair probability that contraband or evidence of crime will be found in area searched. ---hearsay is okay for this purpose ---informant tips okay if police can corroborate enough of tipster's info to allow magistrate to make a "common sense, practical" determination that probable cause exists based on totality of circumstances. (2) Particularity: search warrant must specify (1) place to be searched (2) items to be seized ---must have limits

Is the search or seizure governed by the 4th Amendment? (4 Questions to ask)

(1) Was the search or seizure executed by a government agent? (2) Was the search or seizure of an area or item protected by the 4th Amendment? (3) Did a government agent: (a) physically intrude on a protected area to obtain information? (b) violate an individual's reasonable expectation of privacy in a protected area or item? (4) Did the individual subjected to search have standing to challenge government agent's conduct?

Does the search warrant under which criminal evidence was gathered satisfy 4th amendment requirements? (4 Questions to Ask)

(1) Was the warrant issued by a neutral and detached magistrate? (2) Is the warrant supported by probable cause and particularity? (3) If not, did police reasonably rely on a defective warrant in good faith? (4) Was the warrant properly executed by the police?

United States v. Jones

(2012) Attaching a GPS device to a vehicle and then using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.Police putting a GPS device on D's vehicle and tracking D's movements for more than 28 days constituted a search. Katz did not repudiate trespass. Analysis should simply add reasonable expectation of privacy to trespass.

Search & Seizure 4 Issues/Questions

(I) Is the search or seizure governed by the 4th Amendment? (II) Does the search warrant under which criminal evidence was gathered satisfy 4th Amendment requirements? (III) Does the search or seizure conducted without a warrant satisfy 4th Amendment requirements? (IV) To the extent that evidence violates 4th Amendment, is it still admissible?

Riley

- surveillance of a backyard from a helicopter hovering at 400 feet is not a search. Critical question is whether the public COULD gain access to information in Riley's backyard by aerial surveillance.

Exceptions to Exclusionary Rule

-Knock and Announce Doctrine -Plain View Doctrine -Exigent Circumstances Doctrinte

Did individual subjected to S&S have standing to challenge agent's conduct?

-Must be personal privacy rights, not a third party's -There is always standing in home for owner, person who resides there, overnight guests ---Overnight guests only have standing in areas they are expected to access -No standing for persons using a residence solely for business purposes -Owners of seized property only have standing if they have expectation of privacy in the area from which the property was seized. -Car passengers have no expectation of privacy in vehicle.

Evidentiary Standard for Terry Frisks

-Require specific and articulable facts that suggest suspect is armed and dangerous -only justified by concern for safety

Inventory Searches

-occur when arrestees are booked and cars impounded -regulations governing them must be reasonable in scope -search must comply with regulations -search must be conducted in good faith need to safeguard owner's possession and ensure officer safety

Test to determine whether one is "in custody"

.Whether a RP in suspect's position would believe that he was or was not in custody at the moment--an objective standard.

What two prong test does Aguilar use?

1) Basis of the informant's knowledge • Usually it is based on his personal observations • Even if it is not based on his personal observation, may be acceptable if there is a good reason to believe the hearsay 2) The reliability or credibility of the informant • Informant was a victim of the crime • The informant provided sufficient details in fact to show direct knowledge of the offense. • The informant has provided accurate information in the past. • The informant does not have a criminal record; is gainfully employed; has a good reputation in the community. • The statements are against his penal interest.

staleness

1) PC is too old to justify acting on it 2) time from when police get information to time when police seek warrant 3) time from when police get warrant to time when they execute warrant (conduct search)

Jones' Trespass Test

1) Trespass; 2) of a constitutionally protected space (person, papers, houses, effects); 3)police objective of obtaining information

reliable hearsay

1) concerned citizens - give their own name (most reliable) 2) anonymous tipsters (need more than just the tip) 3) paid informants (past record of reliability; informant makes statement against interest)

reliability

1) how believable is the person? 2) information given under oath 3) reliable hearsay 4) corroboration by police of hearsay information given 5) reputation of defendant

requirements of warrant

1) personal appearance by person giving testimony 2) testify to facts under oath 3) facts must rise to level of probable cause 4) warrant must be signed by neutral and detached magistrate 5) must describe places and items to be seized with RP

6 MAJOR EXCEPTIONS TO SEARCH WARRANT REQUIREMENT

1. Exigent circumstances (hot pursuit, safety or emergency aid, preventing destruction of crime) 2. Plain view (and plain touch and plain smell) 3. Automobile exception (PC that vehicle contains contraband, traffic stop, arrest) 4. Searches incident to arrest with protective sweeps 5. Inventory searches 6. Consent

Exceptions to Exclusionary Rule

1. Good faith 2. Attenuation 3. Independent source 4. Inevitable discovery

Jones Test

1. If conduct was a trespass at common law. 2. Invaded a constitutionally protected area listed in the 4th Amendment, & 3. Committed for the purpose of gathering information 4. It is a 4th Amendment Search.

3 situations in which automobile exception to search warrant requirement applies

1. If officer has PC to believe that vehicle contains contraband or evidence of illegal activity, the officer can search the car, containers within the car, and the trunk (California v. Acevedo) and driver's and the passengers' personal belongings without a showing of individualized PC for each one 2. If officer lawfully stops someone (traffic stop), he can order the driver and passengers to exit (Pennsylvania v. Mimms), search those areas in the car where weapons might be hidden if he REASONABLY BELIEVES, BASED ON SPECIFIC AND ARTICULABLE FACTS, that the person being stopped is dangerous and may gain immediate control of weapons (Michigan v. Long). 3. If an officer arrests someone, he can do a warrantless search the car If the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or If it is reasonable to believe that the vehicle contains evidence of the offense for which the arrest was made (Arizona v. Gant).

House or car factors

1. Location? 2. Readily mobile or elevated on blocks? 3. Licensed? 4. Connected to utilities? 5. Access to roads?

Factors that determine whether the link between illegal police conduct and the evidence has been attenuated, thus purifying the taint of the poisonous fruit of the tree

1. Miranda warning 2. Temporal proximity of arrest and confession 3. Presence of intervening circumstances 4. Purpose and flagrancy of initial misconduct

Plain View Doctrine (3 parts) Dickerson

1. Officer has to observe the object in question from a LAWFUL VANTAGE POINT first. 2. Then, officer must have a RIGHT OF PHYSICAL ACCESS from that lawful vantage point to the place where the object is located. 3. The officer must also have PC to believe that the object in question is something that she can seize.

Required information for warrant

1. Person or property being searched, seized, or tracked; location 2. Oath of affirmation from party requesting warrant and any party upon whose testimony warrant is being based

Purposes of Inventory Searches

1. Protect owner's property 2. Protect police against claims 3. Protect police from danger

Curtilage factors

1. Proximity of area to home 2. Whether area is enclosed with home 3. Nature of uses for area 4. Steps taken to protect area from observation by passersby

Warrantless administrative inspections are reasonable as long as three criteria are met (Burger)

1. Substantial gov't interest that informs the regulatory scheme pursuant to which the inspection is made. 2. Necessary to further that regulatory scheme. 3. Statute's inspection program must provide a constitutionally adequate substitute for a warrant.

Factors to determine whether taint from initial unwarned confession has been cleaned, making the subsequent, warned confession admissible

1. Whether the second interrogation is voluntarily made 2. Whether the second confession is not a mere continuation of the first confession (separation in time, place, interrogators) 3. Whether the police purposely did not read Miranda warnings during the first interview or whether it was inadvertent and not purposeful

Factors to determine whether seizure occured

1. Whether there was a threatening presence of several officers 2. Whether the officer displayed a weapon 3. Whether there was some physical touching of the person of the citizen 4. Whether the use of language or tone of voice indicated that compliance might be compelled

Confessions should be analyzed for two separate violations

1. Whether there's a Miranda violation (5th and/or 6th amendment) 2. Whether there's voluntariness (5th amendment)

Wiretapping

4 major requirements for a valid wiretap: "Screen Telephone Calls Carefully" (1) Suspected Persons: warrant must name suspects whose conversations are to be overheard (2) Time: wiretap must be for limited period (3) Crime: must be probable cause of specific crime (4) Conversations: warrant must describe with particularity the conversations that can be overheard

Illinois v. Gates

A determination of PC should be made using a TOTALITY OF THE CIRCUMSTANCES analysis. In this case, which involved police receiving an anonymous letter about a couple drug use, verifying the details in the letter, and then requesting a warrant, the informant's VERACITY, RELIABILITY, AND BASIS OF KNOWLEDGE were factors taken into account.

U.S. v. Watson

A judge may issue a search warrant only if there is PC. Police can search and arrest in a situation where a warrant is not required only if there is PC.

New Jersey v. T.L.O.

A school official may search an individual on the basis of Reasonable Suspicion.

Define "search warrant."

A search warrant is a written order issued by the proper magistrate and directed to a peace officer, commanding the peace officer to search for listed property or thing and to seized the same and bring it before the magistrate.

Searches When There Are Special Needs

A special category of searches where warrants do not need to be obtained and often where less than PC is required because of a significantly reduced expectation of privacy: 1. Admin. Searches 2. Border crossing 3. Checkpoints 4. Schools 5. Government ee's 6. Drug testing 7. DNA testing 8. Searches of jails and prisons 9. Searches of those on parole and probation

What is the basis for a search incident to arrest?

A valid arrest

Michigan v. Moseley

Admissibility of statements obtained after person in custody has decided to remain silent depend under Miranda on whether his "right to cut off questioning" was SCRUPULOUSLY HONORED

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"

Payton v. N.Y.

An officer may not make a warrantless, nonconsensual entry into a suspect's home to make a felony arrest absent exigent circumstances. Must have an arrest warrant to enter a home.

Minn. v. Dickerson

Announced that Miranda v. Arizona is a constitutional rule that Congress may not supersede legislatively.

Bond - SEARCH

Baggage manipulation

Knotts - NOT A SEARCH

Beeper monitor tracking device outside home

Karo - SEARCH

Beeper tracking device inside home

Schmerber v California

Blood drawn by a physician does not shock the conscience.

Place

CANINE SNIFFS. a dog sniff is "sui generis" (of its own kind) and only reveals illegal activities, so it does not constitute a search under the 4th Amendment.

AN OFFICER ______________ RANDOMLY STOP AN INDIVIDUAL CAR FOR A DRIVER'S LICENSE CHECK.

CANNOT

Caballes - NOT A SEARCH

Canine Sniff of car

Place - NOT A SEARCH

Canine sniff in public

Rochin v California

Cannot shock the conscience by making someone vomit.

exceptions to the warrant requirement: CAN STRIP SEARCH

Consent Arrest - Warrantless Arrest National Security/Border Search Special Needs Terry Stop and Frisk Regulatory/Administrative Searches Inventory Plain View/Feel Search Incident to Lawful Arrest Evanescent Evidence Automobile Roadblock/Checkpoint Community Caretaker Function Hot Pursuit

Determining whether a confession is voluntary

Consider the TOTALITY OF THE CIRCUMSTANCES Factors: 1. Length of interrogation 2. Whether D was deprived of basic bodily needs 3. Use of force or threat of force 4. Deception 5. Age, level of education, and mental condition of suspect 6. D's characteristics (age, mental state) may be relevant

Escobedo v. Illinois

Counsel is a necessary right at defendants interrogation when the defendant desires counsel.

Mapp v Ohio (1961)

Court decided that evidence obtained in violation of the 4th Amendment protection against "unreasonable searches and seizures" may not be used in criminal prosecutions in state courts, as well as federal courts. Established the exclusionary rule (evidence seized illegally cannot be used in court)

Duncan

Current Approach to Incorporation. Selective Incorporation - Whether the 13,14,15th amend. incorporate the bill of rights protections.

California v. Ciraolo

D growing marijuana in backyard. Police flew over yard & saw the plants. *Held: no expectation of privacy where visible to the naked eye (even in plane).

United States v. Karo

DEA agent obtained 38 to put a beeper in a can of ether. Turned beeper on so could track where ether went, & happened to go into Karo's home. *Held: cannot use beeper to determine if ether's still in the house

Minn. v. Dickerson

During a protective patdown, if an officer feels something that is IMMEDIATELY APPARENT as contraband, then he may seize it. Note: He must first have RS to conduct that patdown (Terry v. Ohio).

Is warrantless search through which criminal evidence was gathered valid under any of the 8 exceptions to warrant requirement? (The 8 Exceptions are...)

ESCAPIST: (1) Exigent Circumstances; (2) Search Incident to Arrest; (3) Consent; (4) Automobile; (5) Plain View; (6) Inventory; (7) Special Needs; (8) Terry "Stop & Frisk"

U.S. v. Mendenhall

Established test to determine whether stop has occurred (aka the REASONABLE SUSPECT TEST): A person has been seized for purposes of the Fourth Amendment only if, in light of all the circumstances surrounding the incident, a RP would have believed that he or she was not free to leave.

Mapp v. Ohio

Established the exclusionary rule was applicable to the states (evidence seized illegally cannot be used in court)

Evanescent evidence

Evidence that can dissipate like blood alcohol level in a DUI case.

During the examining trial for the offense of intent to distribute cocaine, Officer Green testifies that he did not inform Mr. Jones that he had a right to say no to the officer's request for consent to search his vehicle. The cocaine was seized pursuant to a search of Mr. Jones' vehicle, based on his consent. At what point is this in the criminal proceeding, since it is taking place during the examining trial? Should the case be dismissed because of the officer's failure?

Examining trial - held before indictment; requires the state to prove its probable cause. An officer is not required to tell a person that he has the right to refuse consent for a search. The case should not be dismissed.

Hudson

Exceptions to the Exclusionary Rule • a violation of the knock-and-announce requirement does not justify the exclusion of evidence found in the home. facts - Police obtained a warrant to search for drugs and firearms at Booker Hudson's home. They discovered both and Booker was charged. However, when police arrived to execute the warrant, they waited only 3 - 5 seconds before entering Hudson's home. holding - A violation of the "knock and announce" rule by police doesn't require suppression of evidence found during a search.

Edwards Test

Questioning has to stop when suspect invokes right to counsel. Prior to a subsequent interrogation a significant amount of time must have passed (cooling off period) and police must mirandize individual again. After 14 days, officers can reinitiate interrogation. Suspect may himself initiate exchanges or conversations after invoking right to counsel, but police may not for another 14 days.

To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against D in court?

Exclusionary Rule: evidence, whether physical or testimonial, obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated. **4 Exceptions: (1) Impeachment; (2) "Knock & Announce" Violations; (3) Negligent Police Error; (4) Officer's Reasonable Mistakes --Fruit of Poison Tree: Derivative Evidence obtained by exploiting prior unconstitutional conduct is also inadmissible.

U.S. v. Leon

Exclusionary rule does not apply if police REASONABLY rely on an invalid search warrant to conduct a search of seizure.

Define "probable cause"

Exists where the facts and circumstances known to the officer, based upon reasonable and trustworthy information, would lead a reasonably prudent person to believe that a search would produce evidence of an offense.

Brown - NOT A SEARCH

Flashlight

Gideon v. Wainwright (1962)

Florida man denied the right to an attorney - Court stated that the state must provide an attorney

Rakas Test

For D to assert a Fourth Amendment violation, his or her own expectation of privacy must have been violated.

Search Incident to Arrest

For officer safety and to preserve evidence. -Arrest must be lawful -Contemporaneous in time and place with arrest -Scope is Wingspan: Can search body, clothing, and any container within arrestee's immediate control -Automobiles: may search interior cabin, but not trunk. -Once officer has secured arrestee - officer can't search auto unless there is reason to believe evidence relating to crime arrested for.

California v. Greenwood

GARBAGE containers outside of the curtilage of the home are considered abandoned and may be searched without a warrant and without cause. No reasonable expectation of privacy. facts - The respondent, Greenwood (the "respondent"), was arrested for narcotics trafficking based upon evidence obtained as a result of a police search of his trash. The California Supreme Court upheld the dismissal of charges on the ground that the California Constitution declared such searches as unconstitutional. The State petitioned for review. holding - The Fourth Amendment does not prohibit the warrantless search and seizure of waste left for collection outside the curtilage of a home. California Court of Appeal reversed.

Jones - SEARCH

GPS tracking w/ trespass

Was search or seizure by a government agent?

Government agents include: (1) publicly paid police; (2) private citizens acting at direction of police; (3) private security guards deputized with power to arrest; and (4) public school administrators

Katz v. U.S.

Government's electronically listening to and recording D's conversation in a phone booth constituted a search. Changed test from trespass to reasonable expectation of privacy.

Harlan Test from Katz

Harlan concurrence TEST: 1) whether person manifested an actual subjective expectation of privacy, 2) whether that expectation of privacy is objectively reasonable or legitimate (society would recognize it as such)

Franks Hearing

Hearing where D attempts to show that officers who prepared warrant did so in reckless disregard for truth or engaged in deliberate falsification.

Reasonable Suspicion

Hunch--RS--Preponderance of the evidence (51%) Less demanding requirement than PC, but officer must still be able to point to SPECIFIC AND ARTICULABLE FACTS, which taken together with the rational inferences from those facts, reasonably warrant the intrusion. Courts must look to the TOTALITY OF THE CIRCUMSTANCES.

Mistakes and warrants

If a mistake is made in executing a warrant, the search is permissible as long as the police action is REASONABLE.

Colorado v Bertine

If a vehicle is under legitimate control of the police, an inventory search can be made without a warrant.

Georgia v Randolph

If one occupant refuses to consent to a search, a search cannot be made even if another occupant does.

Terry v Ohio

If there is a reasonable suspcion that someone is carrying a weapon, a stop-and-frisk can be made so long as the search is limited to finding weapons.

California v Acevedo

If there is probable cause to search a container within a vehicle, then the search is valid.

Eavesdropping

If you speak with someone who has a wire you assume the risk the other party will not keep your conversations.

Wolf v. Colorado (1949)

Illegally obtained evidence did not necessarily have to be excluded from trials in all cases.

Weeks v. United States

Illegally obtained evidence must be excluded from Federal court.

Verononia School District v. Acton (1995)

Imposing drug tests for ALL athletes does NOT violate the 4th Amendment - extended to any student in extracurricular activities in future cases

In re Gault

In juvenile court, juveniles' rights are not coextensive to those of adults.

What is the basis of the inventory search?

Lawful impoundment

California v Carney

Mobile homes are still vehicles.

Nix v. Williams (1984)

Murderer made a statement to police without an attorney before Miranda was read - Court created the inevitable discovery doctrine.

Minnesota v Olson

Must be in hot pursuit of a crime, otherwise probable cause is necessary

What is interrogation?

Questioning or any words or actions on the part of the police that the police should know are REASONABLY LIKELY TO ELICIT an incriminating response from the suspect.

US v. Leon (1984)

Questions pertaining about the affidavit for a search warrant - Good faith exception

Special Needs

Needs beyond a general interest in law enforcement (A) Random Drug Testing: RR employees, customs agents, public school children in extracurricular activities (Not permitted where primary purpose is to gather criminal evidence) (B) Parolees: warrantless searches of parolee and home are permissible conditions of parole (C) School Searches: permissible to investigate violations of school rules. Reasonable... (D) Border Searches: neither citizens nor non-citizens have any 4th amendment rights at border with respect to routine searches of persons and effects

Powell v. Alabama (1932)

Nine youths arrested & sentenced for crime within 24 hours - Court ruled that due process was denied (must have reasonable time to consult counsel)

Oliver

No 4th amendment protection in an OPEN FIELD because no legitimate expectation of privacy in an open field

Brigham City v Stuart

No warrant needed if officers believe someone to be in imminent danger, but must be based on objective reasoning.

Susan allows officers to search her home for about two hours. At 7:55 p.m., she tells officers to stop because it's time for Hell's Kitchen. Officers continue to search and they seize contraband. Admissible?

No. A person may terminate consent at any time.

While conducting an inventory, the officer realizes there is no key for the trunk of the vehicle. He finds a screwdriver and pries open the trunk, causing only minor scratches to the vehicle. He seizes contraband from the trunk. Admissible?

No. Officers may not pry open areas or cause damage to gain access while conducting an inventory.

Officers ask Mrs. Downy for consent to search her son's room for drugs. She walks officers to the doorway. While standing outside the bedroom, she states, "My husband and I do not go in Robert's room because the family has an understanding that his privacy should be respected. But he is only 15, and I don't want to see him go down the wrong path." Officers search the bedroom and find drugs. Admissible?

No. She does not have access to the room.

During a traffic stop, Officer Green arrests John because he has a warrant for his failure to appear for a stop sign violation. John's roommate is in the vehicle. The roommate has a valid driver's license, is not impaired, and is willing to take custody of the vehicle at John's request. The officer impounds the vehicle and finds drugs in the trunk. Admissible?

No. The officer did not have a valid reason for impounding the vehicle.

Officer Green suspects John may be growing marihuana in his backyard. The officer climbs over John's ten-foot wooden fence and searches the backyard. He seizes marihuana. Would it be admissible?

No. The officer does not have a lawful right to be in the backyard.

While conducting a frisk, the officer realizes the item is not a weapon. The officer then begins to focus on that particular object. He shakes it and physically manipulates it until he is finally able to determine that it is contraband. Admissible?

No. The officer went beyond the normal frisk to make the determination that the object was contraband.

Officers respond to a drive-by shooting. As CAPERS is called to the location to begin its homicide investigation, a crowd has gathered. Detective Green thinks that one of the people in the crowd could be the shooter. Under the murder scene exception, he has everyone detained and searched. He seizes contraband from one of the persons who was in the crowd. Admissible?

No. There is no recognized murder scene exception.

Officer Williams notices that the apartment number for the suspect's apartment has been left off of the search warrant. The warrant does list the street address and apartment building number. Officer Williams decides to go ahead and execute the warrant, since he has personal knowledge regarding which apartment the suspect/drugs are in. Are the seized drugs admissible?

No. This is a major mistake. He should go back before the magistrate and correct the warrant.

What must the police do to initiate a pen register or a trap and trace of phonecalls?

Not a search; however, must obtain court order. Must show that you have a REASONABLE BASIS to believe that unlawful activity is going on to get judge to sign order.

Standard for PC

Objective; focuses on what the REASOANBLE officer could have done in the circumstances. D's argued that the officer's asserted grounds for approaching his vehicle to give a traffic warning were PRETEXTUAL or pretense or contrived. The argument was irrelevant because the subjective intent of the police officer was irrelevant.

Safety or Emergency Aid

Officer may enter home without warrant when he has an OBJECTIVELY REASONABLE BASIS to believe that an occupant is seriously injured or IMMINENTLY threatened with such injury.

What is the general rule regarding a search by police?

Officers need a search warrant to conduct a search, unless a specific exception applies.

Chimel v California

Only the immediate area of control of the arrestee can be searched.

Oliver - NOT A SEARCH

Open Fields

Ciraolo/Riley - NOT A SEARCH

Overflight

O'Connor

PUBLIC EMPLOYEES.people who are required to be in a public type of space do not lose all their expectations of privacy in spaces that are considered to be relatively private (school locker, desk drawers). The Court rejected the contention that government employees can never have a reasonable expectation of privacy in their place of work. These type of searches should be judged on their reasonableness. The employees have some 4th amendment protection, but the government CAN search upon reasonable suspicion, must be more than a mere hunch or curiosity, but less than probable cause.

U.S. v. Watson

Particularly in public place, if officer has PC he can arrest without warrant.

Terry Frisks

Pat down of body and outer clothing for weapons that is justified by officer's belief that suspect is armed and dangerous --Can Seize: (1) anything officer reasonably believes is a weapon (2) contraband that is recognizable without manipulating the object --Car "Frisks": If officer believes suspect is dangerous he may search cabin for weapons

RS and Tipsters

RS, like PC, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors--quality and quantity--are considered in the "totality of the circumstances--the whole picture," that must be taken into account when evaluating whether there is RS. One strong prong may make up for the other weak prong.

Terry v. Ohio

Reasonable Suspicion creates the right to pat down.

Title III of the Omnibus Control and Safe Streets Act

Regulates electronic eavesdropping; Warrant/PC/Necessity required to get wiretap. The application for a warrant must state with particularity the basis for PC, a description of the type of communications sought to be intercepted, the identity of the person (if known) whose communications are to be intercepted, whether other investigative techniques have been used, and the period of time during which interception will occur.

Amendment IV

Requires warrant based on PC for a search or arrest

Amendment VI

Right to assistance of counsel

Gideon v. Wainwright

Right to counsel applies to states.

Safford v Redding

School searches must be reasonably related to a supposed crime, and can't be excessive given the circumstances (age, gender)

Safford Unified School District v. Redding (2009)

Schools can search students on reasonable suspicion, however, strip searching a student violate their 4th Amendment rights

O'Connor - SEARCH

Search by public employees

TLO - SEARCH

Search by school officials

New Jersey v T.L.O. (1985)

Smoking in the bathroom case - Court decided that a student may be searched if there is "reasonable ground" for doing so.

Exceptions to Miranda

Statements used for impeachment purposes Statements obtained in emergency situations Statements mad during time of booking in response to routine questions

Katz- SEARCH

Tapped Phone Booth

Katz v. United States

Telephone booth; 4th Amendment protects people, not only things. Don't need actual physical intrusion for a right to be violated. Government's electronically listening to and recording D's conversation in a phone booth constituted a search. Changed test from trespass to reasonable expectation of privacy.

Mapp v. Ohio

The Exclusionary Rule applies to State courts.

Arizona v Gant

The area of immediate control is subject to circumstance, so that if the arrestee has been arrested and in custody, the warrantless search of a vehicle is no longer valid as the arrestee cannot access the area.

Schneckloth v. Bustamonte

The question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the TOTALITY OF THE CIRCUMSTANCES. While the suspect's knowledge of the right to refuse is a fact to be taken into account, it is not a prerequisite to establishing a voluntary consent.

Define "seizure"

The taking of property or the restraint of a person's freedom.

Kyllo - SEARCH

Thermal Imaging of home

Kyllo v. United States(thermal-intimate-bath)

Thermal imager to detect heat inside house & used this info for warrant. Obtaining 1) by sense enhancing technology, 2) any information regarding the interior of the home, 3) that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a search, 4) at least where (as here) the technology in question is not in general public use. facts - The police obtained evidence of a marijuana growing operation inside the defendant, Kyllo's (the "defendant") home, by using a thermal imaging device from outside the home. The police used the device to gather evidence to support issuance of a search warrant for the home. holding - The use of a device by the government, which is not generally used by the public, to obtain evidence from inside a home is a presumptively unreasonable search without a warrant under the Fourth Amendment of the United States Constitution.

Oregon v. Elstad

Though Miranda requires that an unwarned admission be suppressed, any subsequent warned admission should turn on whether it is knowingly and voluntarily made. However, in Missouri v. Seibert, if an interrogator uses a deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, post-warning statements that are related to the substance of the pre-warning statements may be excluded absent, specific, curative steps.

Schneckloth v Bustamonte

Totality of circumstances determines consent, but the subject does not need to know their rights, merely understand that their consent is given voluntarily.

Miranda v. Arizona

When an individual is (1) TAKEN INTO CUSTODY or otherwise deprived of his freedom by the authorities in any significant way and is (2) INTERROGATED, OR SUBJECTED TO QUESTIONING, procedural safeguards must be employed to protect the individual's right against self-incrimination. He must be warned prior to questioning: 1. He has the right to remain silent 2. Anything he says can be used against him in a court of law. 3. He has the right to an attorney. 4. If he cannot afford an attorney, one will be appointed to him prior to any questioning if he so desires.

Chimel v. Calif.

When officers arrest a person in a residence, they may search his person as well as the area within his immediate control or the "grab area."

Maryland v. Buie

When the police arrest a person, they may conduct a protective sweep of the premises if they have REASONABLE BELIEF, BASED ON SPECIFIC AND ARTICULABLE FACTS, that a person might be there who poses a threat to them. May only extend to places where a person could be found. facts - After arresting the Respondent, Buie (Respondent), a police officer enter the Respondent's basement to perform a protective sweep. While performing the protective sweep, the officer discovered evidence that aided in the Respondent's conviction. holding - When police have a reasonable belief that a serious danger exists, they are allowed to carry out a protective sweep.

White - NOT A SEARCH

Wire wearer (3d party)

Dunn - SEARCH

Within Curtilage

Valid Terry stop, Officer Green shines a flashlight into the vehicle. He observes the butt of a weapon on the floor of the vehicle? Would the weapon be admissible in court?

Yes. Valid plain view seizure.

Miranda v. Arizona (1966)

Your rights must be read to you..., 5th, 6th and 14th amendments & thus his confession was illegally.

arrest warrant

a court order commanding that the person named in it be taken into custody

arraignment

a court session at which a defendant is charged and enters a plea. For a misdemeanor, this is also the defendant's initial appearance, at which the judge informs him/her of the charge s and sets the bail.

pretrial motion

a document by which a party asks the judge to make a decision before the trial begins

indictment

a grand jury's formal charge or accusation of criminal action

grand jury

a group of 16-23 people charged with determining whether there's sufficient cause to believe that a person has committed a crime and should stand trial.

exclusionary rule

a legal rule that prohibits the use of illegally obtained evidence against the defendant at trial Mapp v Ohio

motion to suppress evidence

a motion filed by a criminal defense attorney asking the court to exclude any evidence that was illegally obtained from the attorney's client.

5th amendment

a person can't be deprived of life/liberty/property without due process of law, private property can't be taken away for public use without compensation, no person is held to a capital crime unless on a presentment/indictment of a grand jury (except in cases arising in land/naval forces), no person is subject for the same offense to be twice put in jeopardy of life/limb, a person doesn't need to testify against his/herself

nolo contendere

a plea by the defendant that doesn't admit to guilt but also doesn't contest the charges

preliminary hearing

a screening device used in felonies to determine if there is enough evidence to require the defendant to stand trial

affidavit

a written statement sworn to or made under oath before someone authorized to administer an oath

Did government agent (a) physically intrude on a protected area to obtain info (b) violate an individual's reasonable expectation of privacy in a protected area or item?

a) physical intrusion: use of GPS tracking device on a vehicle to monitor movements b) violation of individual's reasonable expectation of privacy. Must show: (1) an actual or subjective expectation of privacy (subjective); (2) that the privacy expectation was reasonable (objective)

documents that make up a warrant

affidavit & warrant itself

custodial arrest

an arrest of a person accompanied by or followed by taking the person into custody

accosting

an encounter with a state actor where a reasonable person would feel free to leave

search warrant

an order issued by a judge or magistrate, giving police the power to enter a building to search for and seize items related to a crime

pretextual stop rule

an otherwise valid stop is not invalidated because the officer uses a minor offense to mask the real reason for the stop

search or seizure

any action that is an invasion of some REP

search

any state action that is an intrusion upon or invasion of D's REP

probable cause

apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime

Seizure & Traffic Stops

both driver and passenger are seized. Officer may order persons out of car. -Dog sniffs are permissible provided they do not prolong the stop unreasonably. dog signals drugs - ipso facto probable cause -MD: K9 Officer detection of drugs creates probable cause to search vehicle, but not passengers.

4 corners of the document" rule

court only looks to words of warrant to see is valid (exception - Franks hearing) used to challenge the warrant itself

warrant

court order permitting search and/or seizure

8th amendment

excessive bail not required, no excessive fines imposed, no cruel and unusual punishment

NY v. Belton

facts - A police officer arrested four people in a speeding car. He examined passenger compartment, and found a jacket containing incriminating evidence. holding - "When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" and that "the police may also examine the contents of any containers found within the . . . compartment."

Maryland v. Wilson

facts - A police officer noticed a car doing 64 mph in a 55 mph zone. The officer pulled over the car, which continued a mile and a half before stopping. Wilson, a passenger in the car, opened the door and cocaine fell out. After the officer ordered him out of the car. He was arrested for possession with intent to distribute. holding - After lawfully stopping a speeding vehicle, an officer may order its passengers to step out. Officers must be permitted such authority over passengers if officer safety is to be protected.

Minnesota v. Dickerson

facts - A police officer patted down a suspect and discovered a small amount of crack cocaine in his jacket. holding - The Fourth Amendment permits the seizure of contraband detected through a police officer's sense of touch during a protective patdown search.

Knowles v. Iowa

facts - A police officer pulled over a speeder, issued a citation rather than arrest, and then searched the speeder's car, finding drugs. The search was authorized by Iowa law even though there was no arrest. holding - An officer issuing a traffic citation cannot search the cited person's vehicle.

Whren v. US

facts - A stopped vehicle attracted the attention of a vice officer. A subsequent chase and search revealed drugs. holding - Any traffic offense committed by a driver is a legitimate legal basis for a traffic stop.

Thompson v. Carthage

facts - A student was expelled from Carthage High School after crack was found in his coat pocket while school officials searched for weapons reported to be on school grounds. holding - The exclusionary rule shouldn't apply to student disciplinary proceedings and evidence obtained in an illegal search may be used in school disciplinary hearings.

Maryland v. Buie

facts - After arresting the Respondent, Buie (Respondent), a police officer enter the Respondent's basement to perform a protective sweep. While performing the protective sweep, the officer discovered evidence that aided in the Respondent's conviction. holding - When police have a reasonable belief that a serious danger exists, they are allowed to carry out a protective sweep.

FL v. JL

facts - Based on an anonymous tip that a black male in a plaid shirt was standing at a bus stop armed, police stopped and frisked J.L. holding - "An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person."

FL v. JL (gates/white..anonymous informant tip)

facts - Based on an anonymous tip that a black male in a plaid shirt was standing at a bus stop armed, police stopped and frisked J.L. holding - "An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person."

IL v. Wardlow

facts - Defendant William Wardlow was stopped and frisked after looking towards police officers and then running in an area known for heavy narcotics trafficking. holding - Nervous, evasive behavior and location in a high crime area are relevant factors in determining the reasonable suspicion necessary for a Terry stop under the Fourth Amendment.

US v. Weeks

facts - Defendant charged with the use of the mails for the purpose of transporting certain coupons/tickets representing chances/shares in a lottery/gift enterprise. He was arrested at his place of employment without a warrant. Police officers entered and searched his house without a warrant and took possession of papers and articles. holding - In federal trials, the 4th Amendment bars the use of evidence unconstitutionally seized by federal law enforcement officers (exclusionary rule).

FL v. Royer

facts - Detectives stopped and questioned respondent Mark Royer after figuring out he fit the profile of a person transporting illegal drugs, and then asked him to accompany them to a small room about 40 feet away. Fifteen minutes later, he consented to search of his bags. holding - A police officer asking a suspect to accompany them to a small police room, taking their ticket and driver's license and not mentioning that they are free to leave, has exceeded the scope of a valid stop based on reasonable suspicion under Terry.

US v. Sokolow

facts - Drug enforcement agents stopped Sokolow in an international airport after his behavior indicated he may be a drug trafficker. Agents arrested him and searched his luggage without a warrant. Later, they obtained warrants to search more extensively and found massive amounts of cocaine. holding - The court upheld that the agents had reasonable suspicion the respondent was engaged in wrongdoing.

Florence v. Board of Chosen Freeholders

facts - Florence was in a vehicle with his wife and 3 kids when she was pulled over for a traffic offense. The officer found that Florence had an outstanding warrant for not paying a fine. He actually had paid the fine, and it was a computer error. He was arrested and spent 6 days in jail and was intrusively searched (for a minor offense he didn't even commit) before being going before a judge and being released. holding - Officials may strip-search individuals who have been arrested for any crime before admitting the individuals to jail, even if there is no reason to suspect that the individual is carrying contraband. Third circuit affirmed.

IL v. Caballes

facts - IL State Trooper stopped Cabelles for speeding. A member of the IL State Police headed to the scene with his drug detection dog. He walked the dog around the care and the dog found marijuana. holding - A dog sniff conducted during a lawful traffic stop that reveals no information but the location of an illegal substance doesn't violate the 4th Amendment.

Indianapolis v. Edmonds

facts - Indianapolis set up a series of checkpoints to intercept drugs. Two motorists sued. holding - Police must have the "usual requirement of individualized suspicion where [they] seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes."

AZ v. Gant

facts - Police acted on a tip that a home was being used to sell drugs. When they got to the home, Gant answered the door and said the owner would return later. The officers left and found that Gant had a warrant out for his arrest. Returning, they found a man and a woman also at the house. They were arrested and in a squad car when Gant arrived. He was arrested and searched, the officers finding a gun and bag of cocaine. holding - 1) Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. 2) Circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.

KY v. King

facts - Police entered an apartment building in pursuit of a suspect who sold cocaine to an undercover informer. The police mistakenly thought he entered an apartment with the smell of pot coming from it and knocked and the door announcing themselves. They heard movement and forcibly entered to find King and others smoking. They found cash, drugs, and paraphernalia. holding - Warrant-less searches conducted in exigent circumstances don't violate the 4th Amendment so long as police didn't create the exigency by violating/threatening to violate the 4th Amendment.

Hudson v. Michigan

facts - Police obtained a warrant to search for drugs and firearms at Booker Hudson's home. They discovered both and Booker was charged. However, when police arrived to execute the warrant, they waited only 3 - 5 seconds before entering Hudson's home. holding - A violation of the "knock and announce" rule by police doesn't require suppression of evidence found during a search.

Mapp v. Ohio

facts - Police officers sought a bombing suspect and evidence of the bombing at the petitioner, Miss Mapp's (the "petitioner") house. After failing to gain entry on an initial visit, the officers returned with what purported to be a search warrant, forcibly entered the residence, and conducted a search in which obscene materials were discovered. The petitioner was tried and convicted for these materials. holding - All evidence discovered as a result of a search and seizure conducted in violation of the Fourth Amendment of the United States Constitution ("Constitution") shall be inadmissible in State court proceedings.

IL v. Lidster

facts - Police set up a highway checkpoint to ask motorists for information about a hit and run. Respondent was determined at the checkpoint to be driving under the influence. holding - Where a stop advances a grave public concern to a significant degree, and interferes only minimally with liberty the Fourth Amendment seeks to protect.

Robinette v. OH

facts - Robinette was stopped for speeding and issued a verbal warning after being asked to step out of his car. He was asked if he had any drugs or weapons in the car, and said he didn't. The officer asked to search the car, and Robinette consented. Marijuana and ecstasy were found. holding - The Fourth Amendment does not require the police to inform a motorist during a traffic stop that they are "free to go" before asking questions unrelated to the purpose of the stop.

Terry v. OH

facts - The Petitioner, John W. Terry (the "Petitioner"), was stopped and searched by an officer after the officer observed the Petitioner seemingly casing a store for a potential robbery. The officer approached the Petitioner for questioning and decided to search him first. holding - An officer may perform a search for weapons without a warrant, even without probable cause, when the officer reasonably believes that the person may be armed and dangerous.

Michigan Police v. Sitz

facts - The constitutionality of a sobriety check point was at issue. holding - The checkpoint program is consistent with the Fourth Amendment because "the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program."

US v. Chimel

facts - The defendant, Chimel (the "defendant"), was arrested inside his home and police asked him for consent to search the home. The defendant refused the request. The police proceeded nonetheless, incident to the lawful arrest and searched in different rooms. The police also had the defendant's wife open various dresser drawers and remove their contents. holding - Incident to a lawful arrest, a search of any area beyond the arrestee's immediate control, is unlawful under the Fourth Amendment of the United States Constitution ("Constitution"), unless there is a clear danger that evidence may be destroyed or concealed or there is an imminent threat of harm to the arresting officers.

TN v. Garner

facts - The officers in question shot an unarmed suspected felon. This case was instituted by the victim's family alleging that the victim's constitutional rights were violated by the officers. holding - If an officer has probable cause to believe the suspect poses a threat of serious bodily harm either to fellow officers or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

US v. Kyllo

facts - The police obtained evidence of a marijuana growing operation inside the defendant, Kyllo's (the "defendant") home, by using a thermal imaging device from outside the home. The police used the device to gather evidence to support issuance of a search warrant for the home. holding - The use of a device by the government, which is not generally used by the public, to obtain evidence from inside a home is a presumptively unreasonable search without a warrant under the Fourth Amendment of the United States Constitution.

Georgia v. Randolph

facts - The police, responding to a domestic disturbance call from his wife, arrived at Randolph's house. His wife told the police he was a cocaine user and gave them permission to search the house for evidence. They searched the house despite Randolph's objections and found cocaine in his bedroom. holding - A physically present co-occupant's stated refusal to permit entry prevails, rendering the warrant-less search unreasonable and invalid as to him.

California v. Greenwood

facts - The respondent, Greenwood (the "respondent"), was arrested for narcotics trafficking based upon evidence obtained as a result of a police search of his trash. The California Supreme Court upheld the dismissal of charges on the ground that the California Constitution declared such searches as unconstitutional. The State petitioned for review. holding - The Fourth Amendment does not prohibit the warrantless search and seizure of waste left for collection outside the curtilage of a home. California Court of Appeal reversed.

US v. Draper

facts - Without a warrant, a federal narcotics agent (agent) arrested the Petitioner, Draper (Petitioner), as he disembarked a train. Probable cause for the arrest was based on an informant's tip, which was corroborated with an accurate, predictive description of the facts surrounding the Petitioner's return. holding - Probable cause exists where the known facts and circumstances would cause a reasonable person to believe that an offense had been, or is being, committed.

protective sweeps

for police protection search immediate area of people; search beyond, with RAS of others in the house

national security/at the border searches exception

full blown search permitted at any border without warrant and without PC (includes any port or airport)

"full blown search"

full search of a person or property

self-incrimination

giving evidence and answering questions that would tend to subject one to criminal prosecution

basis of knowledge

how does person who provided info know? officer's personal knowledge - own observations? informant's (hearsay declarant's) observations? (details indicate personal knowledge? level/amount of detail? type of detail?)

plea bargaining

in a criminal case, the negotiations between the prosecutor, defendant, and defendant's attorney. If the defendant pleads guilty, the prosecutor agrees to charge the defendant with a less serious crime, which usually means a less serious punishment.

Terry Frisks - Protective Sweeps

incident to in-home arrest officer can sweep residence to look for criminal confederates who may threaten safety --may only sweep area immediately adjoining place of arrest, provided there is reasonable suspicion house harbors another person who poses a danger.

Was the warrant issued by a neutral and detached magistrate?

judicial officer ceases to be neutral when conduct demonstrates bias in favor of prosecution.

limited seizure or "Terry stop"

limited detention for investigative purposes (test: person - reasonable person would NOT feel free to leave; property - item detained for brief period)

duration of stop

may last no longer than necessary to effectuate its objective

Consent to Search

must be voluntary and intelligent, but Police need not tell person they have right to refuse consent -Scope: all areas reasonable officer would believe permission to search was granted for -Apparent Authority: someone without actual authority can grant consent if officer reasonable believes they have actual authority. -Shared Premises: Any resident can consent to search of common areas. Objecting party prevails in dispute.

scope requirement

must stop search when find item(s) named in warrant search limited to terms of warrant or consistent with terms of warrant

Curtilage Factors

o Proximity to the home o Included within enclosure surrounding home o Nature of use (intimate activities of family life? o Steps taken by resident to protect the area from observation by people passing by

"Seizure": for 4th Amendment purposes

occurs when, based on totality of circumstances, reasonable person would not feel free to leave or decline officer's request to answer questions. --Did officer brandish weapon? What are officer's tone and demeanor? Was individual told she had right to refuse consent? --Pursuit & Seizure: individual is only seized if he submits to officer's authority by stopping or by physical restraint.

frisk

officer must have RAS that the person is armed and dangerous ("limited search" - a cursory pat down of the outer clothing for weapons)

Does an officer's good faith save a defective search warrant?

officer's good faith overcomes constitutional deficits unless one of four categorical exceptions applies (1) The affidavit supporting warrant is so egregiously lacking in probable cause that no reasonable officer would have relied on it (2) Warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid (3) Affidavit relied upon by magistrate contains knowing or reckless falsehoods that are necessary to probable cause finding (4) Magistrate is biased in favor of prosecution

warrantless arrest exception

permits police to make warrantless arrest occurs in public place/place where officer has right to be PC required crime (misdemeanor - committed in officer's presence -MD says can arrest even if not in officer's presence (DV, misd theft, handgun/deadly weapons offenses); felony - even if not committed in officer's presence) reasonably prompt arrest after crime judge must confirm of PC after arrest within reasonable amount of time

hot pursuit exception

permits police to make warrantless entry into property (hot pursuit of a felon)

search incident to lawful arrest exception

permits police to make warrantless search lawful arrest (based on a warrant or different exception) incident (reasonably contemporaneous to the arrest) search (full blown search of arrestee's body or wingspan area - within reach/lunge/grasp) cars - includes interior is 1) arrestee has access to car at time of search, or 2) if search for evidence of crime for which person was arrested

automobile exception

permits police to make warrantless search of car 1) police must have PC to believe there is evidence of crime 2) in motor vehicle scope of search: anywhere in car, consistent with PC - car's interior, trunk, closed/locked containers

inventory exception

permits police to make warrantless search of seized property purpose is to inventory property for community protection; police policy to search and inventory required and followed not a 4th Amend. search; no PC required

evanescent evidence exception

permits police to make warrantless search or seizure (evidence is likely to be destroyed)

administrative searched exceptions

permits police to make warrantless search where main purpose is a regulatory function - general warrants okay searches of businesses - pervasively regulated businesses - usually dangerous businesses (e.g., coal mines, gun shops, nuclear power plants) searches of schools - students have reduced expectation of privacy; school can search school property (students lockers) w/o warrant or suspicion, or students possessions (students backpacks) w/ RAS - don't need PC or warrant

"special needs" searches

permits police to make warrantless search where some important societal issue (keep drugs out of school/drunk drivers off road), to serve societal interest permits random, non-discriminatory, typically brief, limited searches w/p warrant or any suspicion (random drug testing/DNA sampling, random checkpoint inspections) balance need for search v. degree of intrusion

plain view/feel (sense) exception

permits police to make warrantless seizure of property 1) police had right to be where they observed the item in plain view (in public or by warrant, even if not looking for that item) 2) item observed in plain view/feel/sense 3) immediately apparent (PC) without manipulation

stop and frisk exception

permits police to make warrantless stop of a person/vehicle and investigate consistent with suspicion stop - limited seizure of a person frisk - limited search of a person requires RAS criminal activity is afoot and person detained is involved- more than a hunch but less than PC (lesser invasion/lesser seizure requires lesser suspicion) auto stops - can order all out of car viewed objectively

community caretaker function exception

permits warrantless searches or seizures when purpose is to care for community, not law enforcement (enter a home on fire, search man found unconscious, seize abandoned bag on corner)

Horton v California

plain view doctrine

4th Amedment (generally) requires...

probable cause and a warrant

probable cause

reasonable belief that a crime has been committed and that person committed the crime (to arrest); that evidence is in place to be searched (to search): TOTALITY OF CIRCUMSTANCES (TOC)

seizure

reasonable person does not feel free to leave - state actor: 1) makes use of authority or use of force to seize AND 2) D yields or is captured

sources of probable cause

reliability & basis of knowledge

exclusionary rule

remedy: suppression/exclusion of evidence seized in violation of the 4th Amendment suppresses the direct product of illegal police conduct applies in criminal trials only

knock and announce

required but violation NOT an exclusion of evidence seized reasonable execution requirement

fruit of the poisonous tree doctrine

suppresses indirect product of illegal police conduct EXCEPTIONS: 1) attenuation (evidence did not "flow" from illegal search or seizure - how long between illegal arrest and statement was made?) 2) independent source (2nd lawful source also lead to evidence - illegal confession, but also concerned citizen tol police) 3) inevitable discovery (2nd lawful source LIKELY WOULD HAVE lead to evidence - illegal confession BUT police were searching that area anyway) 4) good faith exception (ONLY applies if police acted in good faith and reliance on warrant) 5) negligent administrative errors exception (negligent admin. errors by court/police court causing violation, as in if police arrest D but warrant was recalled months earlier)

arrest

test: person - reasonable person would feel freedom to leave was restricted in a significant way; property - item taken and fully searched/kept

booking

the formal process for making a police record of the arrest

interrogation

the questioning of a witness or suspected criminal

4th amendment

the right of people to be secure in their persons, houses, papers, and effect against unreasonable searches and seizure

6th amendment

the right to a speedy and public trial by an impartial jury of the state and district where the crime was committed, to be confronted with the witnesses against him/her, to obtain witnesses in his/her favor, to have a lawyer

Automobile Exception (Carroll Doctrine Search)

vehicle's ready mobility + lesser expectation of privacy -Standard: Need probable cause to believe contraband or evidence of crime will be found in vehicle -Where: Can search entire vehicle and may open any containers that could reasonably contain item. -Traffic Stops: Do not need probable cause at time vehicle pulled over

particularity requirements of the 4th Amendment

warrant must describe places to be searched and items to be seized with "reasonable particularity"

good faith exception

warrant not valid, but officer relied in good faith on the signature of magistrate who found it valid (applies ONLY if there is a warrant) used to challenge the warrant itself LAST SENTENCE ON ANY ISSUE INVOLVING A WARRANT!!!

arrest

when a person suspected of a crime is taken into custody

affidavit

written testimony under oath that describes the PC and requests that warrant

What is the fruits of the poisonous tree doctrine?

• "Fruits of the poisonous tree" - if evidence obtained as the result of an illegal search and seizure leads to additional evidence, the additional evidence is "tainted" and will be suppresses. • Evidence that results of flows from an illegal search is tainted.

What analysis does the court make when looking at a federal civil rights case involving alleged violations of the 4th Amendment?

• 42 U.S.C. Section 1983 • Federal civil rights violation including excessive force or illegal search and seizure. • The key is that an officer must be reasonable in his actions, such as in the way he treats persons and handles property during execution of the warrant.

What is the general rule regarding whether a third party can give consent to search another person's property or premises?

• A third party may consent to a search of common property over which he has access and/or authority. • The officer must ask the right questions to determine a person's access and authority over property.

What is the presumption regarding a warrantless search?

• A warrantless search is presumed to be unreasonable. • The State has the burden of establishing that the search was lawful.

Police ask Susie for consent to search her family home. She is 16 years old, appears to be mature, and is in charge of her younger sister. She tells officers she has free access throughout the house and consents to the search. Evidence is seized from the home tying the parents to drug trafficking. How would the court analyze this seizure?

• Although officers may legally base a search in this instance on the minor's consent, the court will closely scrutinize the minor's age, maturity level, emotional state, etc. • The recommendation is that officers do not base the search of parent's home on the minor's consent.

What is the holding in Mapp v. Ohio?

• Any evidence seized in violation of the 4th Amendment cannot be used in the criminal prosecution of the accused. • The 4th Amendment applies to the states. The Supreme Court firmly established the exclusionary rule to suppress illegal law enforcement activities.

Define "search"

• Any governmental violation of a person's reasonable and justifiable expectation of privacy. • A quest for; a looking for.

What are the 12 exceptions?

• Consent • Stop and frisk - Terry • Incident to arrest • Vehicle or mobile exception • Inventory • Plain view or open view • Public place or public view - open field • Emergency search • Abandoned property • Administrative regulatory search • Substance subject to chemical breakdown • Plain touch

What are five parts of the affidavit?

• Description of the place to be searched • Description of the property to be seized • Description of the person in control of premises • Allegation that a law has been violated • Facts showing probable cause

What are three ways an officer can establish the basis of probable cause for a search warrant?

• Facts entirely within the affiant's personal knowledge; • Facts known by the officer combined with a tip or information provided by an informant; • Facts provided entirely by an informant, either named or unnamed

Identify nine factors that may be used to establish probable cause.

• High crime area • Recognize through smell (smell marihuana in vehicle) • Location of suspect (stuck in chimney of closed business) • Has possession of fruits of crime (has stolen goods) • Furtive gestures (sticking object under vehicle seat) • Time of day or night • Abnormal demeanor • Dress, clothing, or physical condition of suspect • Information provided by a credible informant

What is the scope of the search incident to arrest?

• His person • His effects (such as wallet, backpack) • In unusual circumstances - body cavities • The immediate area around the person • Premises: May search the area within the arrested person's immediate control • Premises: Need a search warrant or another exception to search closed or concealed areas in the room of arrest that are not within wingspan or immediate area of the arrestee • Vehicles: Search may be conducted for safety or to preserve evidence • Vehicles: May search the passanger compartment of vehicle, including containers • Vehicles: Containers means any object capable of holding another object, including bags, boxes, luggage. • Vehicles: Does not include locked containers • Vehicles: Not the locked glove box • Vehicles: Not the trunk

Define "suspicion" or "mere suspicion."

• Little or no evidence of an offense • To imagine one guilty or culpable without proof

Bond

• Manipulation of Bags in Public Transit when a bus passenger places his bag in an overhead bin, he expects it will be handled, but does not expect that other passengers or bus employees will feel the bag in an exploratory manner. - A law enforcement officer's physical manipulation of a bus-passenger's bag violates the 4th amendment.

List three points about Probable Cause:

• May be based on hearsay • Cannot be bolstered (increased) by the results or fruits of the search • Must always exist for a search and seizure, whether a search warrant is used.

What is "constructive custody"?

• May use terms "arrested," "confined," "imprisoned," "in custody," "imprisonment." • Refers to the actual, forcible detention of a person • Also includes any coercive measures by threats, menaces or the fear of injury, whereby one person exercises control over the person of another and detains him within certain limits.

What language is generally contained in the actual search warrant?

• Must run in the name of "The State of Texas"; • Identify what is to be seized and the place to be searched; • Command the peace officer of the county to search; • Dated and signed by the magistrate

What is the scope of the vehicle or mobile exception?

• Officers may search every area of the vehicle and closed containers in which an object sought could reasonably be hidden. • Once probable cause exists to support a search of a vehicle, the vehicle exception allows officers to search the trunk.

What is the basis for a temporary detention under Terry v. Ohio?

• Officers may temporarily detain a suspect based on reasonable suspicion. • Detention is not an arrest.

What independent steps should an officer take to ensure reliability if he relies on an informant or other source as the basis for probable cause in a search warrant?

• Officers should take steps to corroborate by independent investigation information provided by an informant. • This information should also be stated in the affidavit

Brown

• Other Sensory Enhancement Devices o Brown- the use of artificial means to illuminate a darkened area (flashlight) simply does not constitute a search, and thus triggers no 4th Amendment protection.

What is the scope of the frisk?

• Pat-down for weapons only • Pat-down is a limited search of the outer clothing of a suspect for weapons • If an officer feels an object that reasonably could be a weapon, then the officer can reach under the outer clothing. • Not a general exploratory search for evidence • May "frisk" immediate area around person • May frisk the passenger compartment of vehicle for weapons • Not the trunk • Not the locked glove box • Not locked containers inside the vehicle

What are the three purposes of the inventory search?

• Protect owner's property • Protect city from claims • Safety

What are three elements of a temporary detention?

• Reasonable or rational suspicion that some activity out of the ordinary is taking or has taken place; • Something to connect the person to be detained with the suspicious activity; • Something to connect the suspicious activity to a specific offense.

Define "reasonable suspicion"

• Reasonable suspicion is a legal standard that a person has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences. • More than a hunch or mere suspicion • The officer must be able to articulate specific facts which, in light of his experience and general knowledge, taken together with rational inferences from facts, reasonably justify detention. • There must be enough objective factors to show, when looking at the person's behavior, that he is about to or has committed an offense.

Smith

• Records Voluntarily Revealed to 3rd Parties - a pen register which recorded the numbers called from his phone telephone did not constitute a search.

Discuss the 4th Amendment and how it relates to the actions of a private person.

• The 4th Amendment does not apply to a private person, unless the private person is acting at the encouragement or under the direction of the government. • But the private person cannot break the law to obtain evidence. • Remember: an off-duty officer is not a private person for purpose of the exclusionary rule.

What is the holding in Gates v. Illinois?

• The judge looks at "the totality of the circumstances" - the whole picture provided by the facts in the affidavit. • The judge makes a common sense decision on whether there is sufficient probable cause to believe that the contraband or evidence will be found at the location named in the search warrant.

What can an officer do based on reasonable suspicion?

• The officer can detain a suspect based on reasonable suspicion. • The person is not required to identify himself or answer the officer's questions. • The officer may detain the person for a reasonable amount of time while he investigates the possible offense. • If safety concerns, the officer may frisk the person for weapons.

What can an officer require a person to do based on suspicion?

• The officer can investigate by approaching a person to speak with him. • The person is not required to identify himself or answer the officer's questions. • The officer may not detain the person.

In sum, what are the two requirements that must be meet for plain view to apply?

• The officer must have a lawful right to be there. No trespassing. • It must be immediately apparent to the officer that the object is contraband or evidence of a crime. No touching.

What is the officer's duty regarding leaving a copy of the search warrant following execution?

• The officer shall present a copy of the warrant to the owner or person in control. • The officer shall prepare a written inventory of property seized. • The officer shall put a legible signature on the inventory and present a copy to the owner or person in possession of the property. • If no person is present, leave copies. • Failure to leave copies will not normally invalidate the search.

What are proper procedures regarding the handling of seized property / arrested persons?

• The officer shall take possession of seized property and carry it before the magistrate. • Give the magistrate a copy of warrant stating manner executed and attach the inventory of property seized. • Make return to magistrate even if no property is seized. • Failure to make return will not invalidate search. • Immediately take any arrested person before a magistrate. • Property seized pursuant to a search warrant shall be kept as provided by the order of the magistrate. • Property should be placed in the property room or in accordance with the SOP. • Maintain the chain of custody. • Retain custody of property, subject to court order. • May send out for laboratory analysis.

What is the exception to the exclusionary rule?

• There is a good faith exception if evidence was obtained by an officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause. • The cases involve warrants that were technically defective. • The Texas statute has incorporated the good-faith warrant exception as well.

When does standing generally apply to a defendant?

• They have lawfully been on the premises at the time of the search; • Have a proprietary or possessory interest in the premises; or • Have possession of the evidence when it is seized, if the evidence is an essential element of the offense.

In sum, what is the analysis the court makes when looking at a search involving a stop & frisk?

• Was there reasonable suspicion to justify the detention? • Were there safety concerns to justify the frisk?

What may officers seize incident to arrest?

• Weapons • Instruments of the crime • Fruits of the crime • Contraband • Mere evidence that shows a person's guilt

In sum, when is consent valid?

• When given freely and voluntarily • Not under duress or coercion • No misrepresentation or deception (unless undercover for the department) • Court looks at all the facts - totality of circumstances

White

•Conversations and Scenes Voluntarily Revealed to 3rd Persons Where agents recorded conversations with D and shared them with other agents, no violation of 4th amendment because agents could have revealed the contents of the conversations to others without the aid of recording device.