Exam 3

SCOTUS held sometimes REP in public:

"What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."*

a search is a two fold test that includes:

- Person exhibits subjective or actual expectation of privacy; and - Society objectively recognizes it as reasonable.

When government agents search a person incident to arrest, they may use as much force as reasonably necessary to:

- Protect themselves, - To prevent escape, - Or to prevent the destruction or concealment of evidence.

Factors contributing to the decision to frisk include:

- Suspect that flees. - A bulge in the clothing. - Suspect's hand concealed in a pocket. - Being in a known high crime area and suspect crime would likely involve a weapon. - Furtive movement - Body positioning

What are examples of some exigent circumstances

-Danger or physical harm to officer or other -Danger or destruction of evidence -Driving while intoxicated -Hot-pursuit situations -Individuals requiring rescuing

Government misconduct could result in:

-Department discipline against the officer -civil lawsuits -criminal charges

What are places in which there is a reasonable expectation of privacy?

-Home, buildings, businesses, hotel room, overnight guests, etc. are usually thought of as being protected and requires a search warrant, absent consent and/or exception. -Home probably still the most sacred.* -Overnight guests ALSO have REP.** -Passenger in a vehicle is seized as well. ***

What does the reasonableness interpretation say regarding the Fourth Amendment?

-It sees the two clauses as separate, distinct, and addressing two separate situations -this clause makes warrantless searches and seizures valid and constitutional when they are sensible

What it the case-by-case method

-Reasonableness is determined by considering the totality of circumstances in each individual case. It is the most commonly used method in the U.S.

There are two interpretations of the Fourth Amendment, in the 1960's the Court used the conventional Fourth Amendment approach which does what?

-combines the two clauses together -holds that all searches not conducted with both a warrant and probable cause are unreasonable, and, therefore unlawful.

What are the four exceptions to the exclusionary rule?

-inevitable discovery doctrine -valid independent source -harmless error -good faith -silver platter -Impeachment

REP established by many factors such as does the person have:

-possessory interest? -right to exclude others? -subjective expectation of privacy exhibited? -legitimately on premises?

What is reasonable?

-sensible, rational and justified

What are the elements of seizure?

1) intending to seize an object (including a person), 2) exercising authority to do so, 3) physically controlling the object, and 4) the understanding of what is happening such that a reasonable person would not feel free to leave.

What are the elements of arrest?

1. Intending to take a person into custody 2. Exercising authority to do so 3. Detaining or restraining the person to be arrested and 4. The arrestee understanding what is happening

An unlawful search and seizure can have two serious consequences, what are they?

1. The evidence may be excluded from court. 2. Internal sanctions as well as civil and criminal liability may be incurred.

What are the fundamental rules of search and seizure under the Fourth Amendment?

1. There must be governmental action. 2. The person making the challenge must have standing, that is, the conduct violates the challenger's reasonable expectation of privacy.

What are the exceptions to good faith

1. Where the magistrate was misled by information in the affidavit which the affiant knew was false or should have known was false. 2. The issuing magistrate totally abandoned his/her judicial role. 3. The warrant was based on an affidavit "so lacking in indicia of probable cause" as to render official belief in its existence unreasonable. 4. Where the warrant was so facially deficient that an executing officer could not reasonably have assumed it was valid.

In what case was this issue addressed: an affidavit provided by police officers in support of a warrant stated that they had received information from an unidentified informant that the individual possessed drugs at his residence. Was this enough for probable cause? What was the holding in this case.

Aguilar v. Texas 1964 -Yes. Established a two prong tests for informants: 1st prong tested the informants credibility 2nd prong tested the informant's basis of knowledge and reliability of the information provided

What case established probable cause?

Carrol v. United States (1925)

________________ is the outdoor area immediately surrounding the home, may be protected. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person's home

Curtilage

___________________ is Judge-made case law promulgated by the Supreme Court to prevent police or government misconduct.

Exclusionary Rule

___________________ is by far the most frequently used means to address constitutional infractions by the government in criminal cases.

Exclusionary Rule

______________________ prevents evidence seized in violation of a person's constitutional rights from being admitted into court.

Exclusionary Rule

The courts have recognized that sometimes situations will arise that reasonably require immediate action before evidence may be destroyed. What is this referring to

Exigent circumstances

The _________________ applies the Fourth Amendment to the states

Fourteenth

The ______________ limits the power of the government to intrude in one's space and keeps police conduct in check

Fourth Amendment

What amendment states that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches & seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation and particularly describing the place to be searches and the persons or things to be seized.

Fourth Amendment

______________ is a reasonable, limited pat-down search for weapons for the protection of a government agent and others.

Frisk

In what instance can a private party be considered to be a government agent?

If a private party agrees to go in to get an item from a house or a private security guard agrees to search someone for the police, this person can be considered an agent of the government. -Then the Fourth Amendment would apply

In this case the court held that having a police narcotics-detection dog simply walk around a vehicle that had been stopped for speeding is not unconstitutional

Illinois v. Caballes (2005)

what case made the establishment of probable cause by use of informants easier for police?

Illinois v. Gates (1983)

The ___________ determines probable cause by examining the totality of circumstances contained in the affidavit

Judge

Invalid consent

Lord/tenant hotel employee/hotel guest -if two parties are present and one says no

In what case is the exclusionary rule applied to the states

Mapp v. Ohio (1961)

What case established the protective sweep?

Michigan v. Long (1983)

Is a miranda warning required for a stop?

NO

What was the decision in Wolf v. Colorado

NO in a prosecution in a state court for a state crime, the 14th Amendment does not forbid the admission of relevant evidence even though obtained by an unreasonable search and seizure.

Are store detectives controlled by the Fourth Amendment?

NO, store detective are NOT controlled by the Fourth Amendment

What was the decision in Tennessee v. Garner?

No. Deadly force is not justified when the fleeing felon presents no immediate danger to the officer or to others. A police officer may not seize an unarmed, non-dangerous felony suspect through the use of deadly force.

In what case did the court hold that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home...

Oliver v. United States

Who is not regulated by the Fourth Amendment?

Private individuals or agencies are not regulated by the Fourth Amendment

_____________________ can legally justify searches and arrests with or without a warrant and requires the questions: would a reasonable person believe that a crime was committed, and that the individual committed the offense, or that the contraband or evidence is where it is believed to be?

Probable cause

_____________________ must be established before a lawful search or arrest can be made.

Probable cause

_______________________ exists when the facts and circumstances within the officers' knowledge and of which they had reasonable trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed.

Probable cause

___________________ refers to a situation in which the punishment of a convicted offender is conditionally suspended.

Probation

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated" can be found within what clause?

Reasonableness Clause

What are the two clauses that are important to the Fourth Amendment in regard to search and seizure?

Reasonableness Clause The Warrant Clause

What are the two clauses of the Fourth Amendment regarding reasonableness and what is meant by each?

Reasonableness by: 1) bright-line approach (specific rule applied to all cases 2) case-by-case basis (totality of the circumstances)

________________ is a brief detention of a person based on specific and articulable facts for the purpose of investigating suspicious activity.

Stop

The use of __________ might be considered unreasonable excessive force if the subject is neither a flight risk, a dangerous felon, nor an immediate threat.

TASERs

In what case was this issue addressed? Issue: Can deadly force be used to apprehend a fleeing nonviolent felon?

Tennessee v. Garner (1985)

____________ established that the authority to stop is independent of the power to arrest

Terry v. Ohio

Why are government agents regulated by the Fourth Amendment?

The Constitution was established to limit the power of government and its agents

What was the decision in Terry v. Ohio (1968)

The Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." -established the Terry stop

"...and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized" This is part of what clause?

The Warrant Clause

What does the Knock and Announce Rule state?

The general rule is that officers must first knock and announce their authority before breaking into a dwelling to execute a warrant.

Why are store detectives not controlled by the Fourth Amendment?

They are not government agents, and the Constitution was established to limit the power of government and its agents.

What prohibits the interception of phone conversations unless one party to the conversation consents.

Title III of the Omnibus Crime Control and Safe Streets Act of 1965

T/F: Searches of persons, belongings and vehicles at international borders are reasonable under the Fourth Amendment.

True

T/F: Sometimes a private party can be considered to be a government agent.

True

T/F: There is no legitimate expectation of privacy on company owned computers

True

In what case was this issue addressed? Issue: Is fifteen to twenty seconds long enough for police to wait after knocking and announcing?

United States v. Bank 2003

What case held that UPS employees could open, without warrants, packages and inspect their contents whenever a customer insured a package for more than $1000.

United States v. Parker (1994)

What case held that an airline employee who inspected the defendant's luggage according to the FAA regulations was acting in a government capacity and was governed by the Fourth Amendment.

United States v. Ross (1982)

What case established the exclusionary rule

Weeks v. United States

What case addressed the issue: are the states required to exclude illegally seized evidence from trial under the Fourth and Fourteenth Amendments?

Wolf v. Colorado

Is probable cause stronger than reasonable suspicion?

YES

Is it reasonable to use force, even deadly force, to stop a motorist who is driving so recklessly as to put innocent people in jeopardy?

YES (Scott v. Harris)

In what case was this issue addressed: The police received an anonymous letter outlining specific details about the Defendants being involved in drug trafficking, later corroborated by their actions. Is the letter enough for probable cause? What was the result of the case?

Yes. Abandoned the two prong test and replaced it with the totality of the circumstances.

What was the decision in United States v. Bank?

Yes. It is not unreasonable to think that someone could get in a position to destroy the drugs within fifteen to twenty seconds.

___________________ exists when an officer has a compelling need to take official action but lacks the time needed to acquire a warrant. Must also have probable cause.

an exigent circumstance

If the search or seizure is illegal, then ____________________________ is NOT admissible

any evidence obtained

A/an ____________ is the taking of a person into custody in a manner authorized by law for the purpose of presenting that person before a magistrate to answer for the commission of a crime.

arrest

___________________ are actions described in clear, distinct statements.

articulable facts

Facts and evidence obtained after a search or arrest ____________________ be used to strengthen the case if probable cause was established before the arrest, making the arrest legal

can be

Facts and evidence obtained after a search or arrest _________________ be used to establish probably cause

can not

In the case of a ____________________ most statutes state that the arrestee must be immediately turned over to law enforcement.

citizen's arrest

_____________ is the detention by a nongovernmental agent of one accused of an illegal act

citizen's arrest

Many states have granted their legislatures immunity from _______________

civil lawsuits

Foreign diplomats, including ambassadors, ministers, their assistants and attachés have _________________________

complete immunity from arrest

______________ must be given voluntarily and cannot be the result of coercion or duress

consent

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is _________________________

constitutionally unreasonable

The ______________________ represents the almost limitless variations of contacts between the public and the police and illustrates how justification for police action increases as their reasons build for thinking criminal activity is afoot.

continuum of contacts

__________________ is anything that is illegal for people to own or have in their possession

contraband

Officers who use excessive force can be subject to ____________ or _____________ sanctions

criminal or civil sanctions

The exclusionary rule applies only in _______________________ in which a constitutional right has been violated.

criminal trials

________________ must not be used to execute the warrant

excessive force

________________ is a situation in which police are immediately in pursuit of a suspect and may cross state jurisdictional lines to make an arrest of that felon.

fresh pursuit

A ______________ is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee's outer clothing for the officer's safety is authorized.

frisk

If an officer suspects a person is presently armed and dangerous, a ___________may conducted without a warrant.

frisk

____________ searches are unconstitutional and never legal

general

Who is regulated by the Fourth Amendment?

government agents

____________________ is the period during which an individual is being immediately chased by law enforcement; officers are allowed to forcibly enter constitutionally protected areas without a warrant.

hot pursuit

Arrests can be made _______________ without a warrant if probable cause exists

in public places

Standard of proof is less than __________________ and more than __________________

less than proof beyond a reasonable doubt and more than reasonable suspicion.

Government agents who have probable cause must go before a ______________ and swear under oath about who and what they are looking for and where they think it can be found.

magistrate (judge)

Generally, the police have the authority to use force if

necessary to make an arrest, keep the peace, or maintain order

The _______________ says that unconcealed evidence that officers see while engaged in a lawful activity may be seized and is admissible in court.

plain view doctrine

____________________ exists when the facts and circumstances within the officers' knowledge and of which they had reasonable trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed and that evidence will be contained at a certain place.

probable cause

________________ requires a link between the crime and the suspect.

probable cause to arrest

_________________ search requires a link between the evidence and the place to be searched

probable cause to search

Officers are often protected with ______________________

qualified immunity

As long as probable cause exists to arrest, search incident to arrest is ______________________

reasonable

The amount of force must be ________________

reasonable

A LEO must have ________________ before they stop someone in a vehicle or anywhere, or detain someone or frisk someone for weapons.

reasonable suspicion

___________________ is the standard of proof, which is a fluid concept & is based upon objective & articulable facts, which is less than probable cause & more than a hunch.

reasonable suspicion

Since the 1960's the Court has broadened government power by adopting the ___________________ Fourth Amendment approach

reasonableness

The ________________ of the police action determines the lawfulness of it

reasonableness

What does the bright-line approach say?

reasonableness is determined by a specific rule applying to all cases.

a _______________ is an examination of a person, place, or vehicle for contraband or evidence of a crime.

search

a _________________ occurs when an individual's REP is invaded as a result of governmental action

search

If seizure is illegal, then _________________________________________ is illegal

search incident to the seizure

A ____________ is a taking by law enforcement or other government agent of contraband, evidence of a crime, or even a person, into custody.

seizure

A ________________ occurs when there is some meaningful interference with a person's possessory interests in property or to the person

seizure

A stop is not an arrest but it is a _____________ regulated by the Fourth Amendment and requires reasonableness

seizure

The only justification for use of deadly force is:

self-defense or protecting the lives of others

An officer who has violated someone's rights may be ___________ or ______________

sued or prosecuted criminally

Judges today will grant __________________ warrants

telephone

What is the intent of the Knock and Announce Rule

the intent is to prevent the occupant from responding with force against unknown intruders.

If the warrant states only one specific item be sought, once it is located __________________________

the search must end

_________________ is the principle upon which a number of legal assessments are made, including probable cause

totality of circumstances

___________________ is the principle upon which a number of legal assessments are made, including probable cause.

totality of circumstances

In determining whether probable cause for a warrant exists, the judge must consider the _________________________

totality of the circumstances

The Constitution doesn't provide an absolute right to be free form government intrusion, only _________________________

unreasonable interference

The Fourth Amendment only protects against _______________________________________

unreasonable searches and seizures

If a person retreats to a private place, the warrantless arrest based on probable cause is _________

valid

The Fourth Amendment prefers a ___________ because it necessitates judicial review of government action.

warrant

Officers can search only the areas ______________________________________

where they reasonably believe the specified items might be found

Searches without a warrant

• Consent • Frisk • Plain View • Search Incident to Arrest (with limitations) • Vehicular Searches (with limitations) • Exigent Circumstances • Vessel Searches • Border Searches • Public Schools (with limitations) • Government Offices • Prisons and Regulation of Probation • Drug Testing (with limitations)

If determined search/ seizure is unlawful, there could be:

• Criminal liability and/or; • Civil liability and/or; • Agency discipline.

Generally lawful arrests can be made in one of three ways what are they?

• For any crime committed in their presence, • For any felony if they have probable cause, • Or with an arrest warrant.

Officers may stop motorists:

• For violations of the law such as equipment violations, erratic driving, and invalid vehicle registration. • And when an occupant inside the vehicle is suspected of having committed a crime.

What are the elements of a seizure?

• Intending to seize an object (includes a person) • Exercising authority to do so • Physically controlling the object, and • The understanding of what is happening such that a reasonable person would not feel free to leave.

These are limited searches that the court considers reasonable because societal needs are thought to outweigh the individual's normal expectation of privacy:

• Prison • Probation and parole searches • Drug testing for certain occupations • Administrative searches of closely regulated businesses • Community caretaking searches • Public school searches

All searches with a warrant must be based on:

• Probable cause • Supported by oath and affirmation • Particularly describing the place to be searched, and • The persons or things to be seized

Legitimate use of force in arrests includes:

• Self-defense (a right common to all persons) • Defense of others (a duty assigned to police personnel) • Effectuate an arrest (a vested authority granted by law) • Prevent an escape (a vested authority granted by law) • Overcome resistance (a vested authority granted by law)

a seizure is determined by:

• Would a reasonable person feel free to leave? • Does person submit to show of authority?** • Is there an application of force? • Usually seizures are brief and investigative means should be the least intrusive; • Are for investigative purposes and typically not custodial