1) 4A Flashcards
(115 cards)
1
Q
rship btwn state laws and 4, 5, 6 ams
A
1) rights incorporated to states through 14A DPC
2) states can provide additional protections
3) but a state statute that violates fed const = invalid
2
Q
crim pro qs: approach
A
1) was there gvt action?
2) did it trigger const right? (was it a search? was it an interrogation? etc)
3) if yes, violate right?
4) is your D entitled to exclusion?
3
Q
gvt action: rule
A
4A applies only to gvt, not private conduct
4
Q
silver platter doctrine
A
if private party acting on his own gets evidence that gvt later wants to use in a prosecution, does not trigger 4A!
5
Q
silver platter doctrine: exception
A
if privat party acted at direction of gvt (or pursuant to official policy) then yes 4A triggered
6
Q
seizure / 4A
A
IF there is a sz, 4A is triggered
7
Q
sz of a person: what’s a sz?
A
(gvt action) +
1) RP in his position would not feel free to leave or otherwise terminate the police encounter
8
Q
sz of a person: test
A
1) police use physical force (even a little) OR
2) police make show of authority followed by submission
9
Q
sz of a person: test for naturally confined location
A
would RP feel free to terminate police encounter?
10
Q
sz / arrest
A
arrest = maximum sz
11
Q
casual encounter vs sz vs arrest
A
purpose + duration
12
Q
sz: Terry stop
A
brief investigatory sz for sole purpose of investigating a RS that crime is about to or recently has occurred
13
Q
sz: Terry stop: permissible duration
A
time necessary to confirm or deny the suspicion
14
Q
RS, suspicion confirmed
A
suspicion blossoms into PC (and next step could be arrest)
15
Q
RS, suspicion denied
A
suspicion dissipates (and sz must terminate)
16
Q
sz of property: def
A
police do meaningful interference w possessory interest
17
Q
sz: placing a beeper
A
NOT a sz if does not interfere w owner’s use of the property
18
Q
search: rule
A
if it’s a search, it triggers reasonableness reqs of 4A
19
Q
search: def
A
1) any gvt investigatory trespass against person, papers, or effects OR
2) intrusion into REP (look into or enter)
20
Q
home: scope
A
includes the curtilage
doe snot include the open fields
21
Q
investigatory trespass: exs
A
bringing drug dog onto the curtilage
physically touching car to place gps tracking device
22
Q
REP: test
A
BOTH:
1) D manifests subjective expectation of privacy (ex shielding) AND
2) expectation is objectively reasonable bc it’s an expectation society is willing to recognize (inc dn expose it to the public)
23
Q
REP: none if
A
knowingly exposed to the public
24
Q
things that are not a search bc exposed to the public
A
1) commonly available equipment
2) animals (drug dogs)
to enhance police’s 5 senses – does not make it a search as long as unenhanced observation would not have been a search
(device not in general public use doesn’t count)
25
no REP in:
1) handwriting exemplar
2) voice exemplar
3) bank records
4) pen register
5) email headers (sent thru ISP)
6) false friend convos (recorded w consent of other party)
7) open fields (even if police trespass)
8) naked eye aerial observation of private property
9) aerial photography
10) discarded property (garbage)
26
IF it's a search or sz, then
must be reasonable, in order to comply w 4A
27
warrant/reasonableness
if police have a warrant, creates presumption of reasonableness
if no warrant, presumptively unreasoanble + gvt BOP that it fell w/in exception
28
ways to challenge warrant
1) not based on valid PC
2) magistrate not neutral or detached
3) warrant failed to describe w particulrity what to search or sz
29
warrant/exclusionary rule
excluding evidence requires that police acted UNREASONABLY when relied on warrant (not enough that warrant later found invalid)
30
warrant PC: def
affidavit to magistrate must provide relatve facts leading to fair probability (more probable than not) that person committed crime OR that evidence will be found in this location
AND
evidence provided to magistrate must not be stale
31
warrant execution: method
rarely, method may make it unreasonable if shocks the conscience (bullet removal)
32
warrant execution: knock + announce
police normally must knock + announce their ID before entering home to execute warrant
33
warrant execution: knock + announce: exceptions
knock + announce not required if police have RS to believe that knocking will endanger officers or lead to destruction of evidence, or flight of suspect
34
warrant execution/exclusionary rule
violating knock and announce rule DOES NOT trigger exclusionary rule, even tho is 4A violation
35
PC: needed for
full-scale intrusions:
search to find evidence
arrest
36
RS: needed for
brief investigatory sz
| protective cursory search
37
PC: def
fair probability: facts + circs that would lead RP to conclude that indiv in question has committed a crime (for an arrest) or that specific items related to crim actiivty can be found at the location (for search)
38
PC = objective standard, (result)
focused on facts and circs
result: even if police has improper subjective motive, still assess reasonableness objectively -- if there was PC, it's reasonable
39
PC + anonymous tip: test
totality of circs: factors:
1) veracity of informant (track record)
2) basis of knowledge
3) police investigation that corroborates tip
reliability higher if identifies self
not enough if just a prediction any neighbor could make
all these together --> predictive insider information
40
RS: def
belief based on specific articulable facts, beyond a hund, so RPP would think suspect has or is about to engage in illegal activity
hunch + verifiable objective fact = enough
41
terry stop: def
brief investigatory sz -- need RS
42
terry frisk: def
cursory protective search -- need RS
43
arrest: standard
always need PC
44
arrest: warrant?
no, as long as has PC
| and arrest is in public (need warrant for arrest in the home)
45
arrest / warrant / home: exception
exigent circs
46
exigent circs (for warrantless arrest in the home): test
1) offense is more serious than minor misdemanor
2) officer did not unlawfully create the exigency
and ONE OF THESE:
a) arrest attempt outside is thwarted bc suspect retreats into home OR
b) insufficient time to get a warrant bc delay would allow suspect to evade arrest or destroy evidence OR
c) arresting officer is in hot pusuit AND has PC for avlid arrest
47
Terry stop: standard
need RS that crime is in progress or has just been committed by suspect, to confirm or rule out suspicion
48
RS / flight
headlong flight from plice, in a high crime neighborhood, = RS
49
tips: RS
informant tip + police investigaiton that corroborates accuracy of informant's predictions = RS
50
tips: RS vs PC vs nothing
PC: predictive inside information!
RS: verified prediction (dnn insider access)
no prediction = no RS
51
Terry stop: scope
1) time required for officer, acting in due diligence, to confirm or deny the suspicion
2) ok ask name + ID as long as has immediate relation to purpose of stop
52
RS: objective standard
just like PC -- officer's improper subjective basis not a problem as lon gas there was objectively reasonable belief that suspect was engaged in or about to engage in crim activity
53
sz of property: standard
warrant presumptively, but not always required
54
sz of property: warrant exception
plain view
55
sz: plain view: elements
1) police are in lawful vantage point to observe the item (w/in the scope of their orig search etc)
2) (contraband) -- incriminating nature of item is immediately apparent (gives immediate PC to sz) +
3) officer has lawful access to point of sz (dnn to do extra unauthorized search ot get there)
56
sz: plain view: not required
inadvertence -- so ok if officers anticipated they might find something + then they didn't list it -- if it comes into plain view, the sz is reasonable
57
plain view req is for
warrantless SZ, not warrantless search (bc if it's in plain view you don't need a search to begin w!)
58
4A searches w warrant: scope (general)
premises described in the warrant only
(exception): indep justification
59
searches w/ warrant scope: exception
plain view doctrine (as long as comes into pv w/in scope of warrant)
60
4A searches w warrant: scope: location owned by nonsuspect
ok
61
4A searches w warrant: scope: ppl
includes right to detain ppl in the home during the search
but NOT the right to search the ppl (unless listed in warrant)
62
4A searches: rule
warrantless search is unreasonable unless meets an exception
63
4A searches: warrant exceptions
1) SITLA
2) auto
3) special needs (checkpoints)
4) consent
5) hot pursuit
6) exigent circs
7) Terry search (frisk)
8) administrative search
64
SITLA: rule
warrantless search of arrestee + area w/in his immediate control is automatically permitted following lawful arrest
65
SITLA "lawful arrest": lawful
based on pC
```
officer's subjective motives irrelevant
reasonable mistake (like arresting wrong suspect) --> sitla still reasonable
```
66
SITLA "lawful arrest": arrest
have to actually arrest -- no searches incident to citation!
67
SITLA: timing
must be contemporaneous w arrest (rarely can precede slightly as long as arrest inevitable)
68
SITLA: automatic
no requirement to justify each one re safety/evidence
69
Terry sweep: def
if police have RS that others in home may put them at risk, then
may conduct cursory protective sweep of the house to rule out the risk. Scope limited to where person could hide.
70
SITLA automobile rule
police can automatically search person of arrestee but how much they can search car depends on if arrestee has genuine access to interior after arrested
71
SITLA: automobile: yes genuine access
then, can search interior of the car + all containers
| rare
72
SITLA: automobile: no genuine access
can only search interior of car if police have RS that evidence re crime of arrest is in the car
73
automobile exception: rule
police can search automobile (or other self-propelled conveyance) w/o a warrant as long as have PC
74
automobile exception: justifications
reduced expectation of privacy (gvt reg)
| + inherent mobility
75
automobile exception: scope
whole car + all containers w/in
THAT YOU HAVE PC FOR (consider size of the thing you're looking for, etc)
ok bring it to the impound lot (dnn get warrant, even if have time)
76
automobile exception: exception
immobile vehicle (incapable or parked in area showing it's not) then, automobile exception dn apply
narrow
77
automboile exception: how it tends to go
you need PC for it (so traffic violation not enough) but commonly after traffic violation + stop, PC develops so then can search
78
special needs docrine: rule
ok suspicionless search at checkpoint if checkpoint is for special needs
79
special needs: "special needs" def
primary purpose must be protect public from immediate danger
CANT BE GENERAL CRIME CONTROL or dy of evidence!
80
special needs: "special needs" exs
sobriety
search for recently escaped inmate or suspect
counter-terrorism
81
special needs: manner/scope of search
1) based on fixed formula so indiv officers can't select the suspects
2) narrowly tailored in scope to address the specific threat
3) conducted in location/manner that minimizes citizen anxiety
82
special needs: sz at checkpoint
ok seize antything that comes into plain view while searching w/in scope (even if contraband unrelated to safety issue)
(and of course can develop pc etc)
83
special needs: checkpoint must be fixed
not roving (so no random checks of license/reg w/o RS wrongdoing)
84
special needs: exception
border searches
85
border searches; rule
ok stop vehicles at permenant checkpoints at or near the border or do routine searches of ppl/property, dnn suspicion or cause
if "nonroutine," need RS. (unusually intrusive: body cavity search or permanent destruction of property)
86
consent: exception to
1) warrant req AND
| 2) PC req (so police dnn RS ni PC to ask for consent)
87
consent / sz
any evidence observed in plain view w/in proper scope of consent search may be seized
88
consent: rule
consent must be VOLUNTARY, based on totality of circs
89
consent: voluntariness: exs of not voluntary (and a but)
fake warrant
fraudulently
under duress
police threaten to do something they DN have authority to do
BUT police not required to inform suspect that she can decline consent
90
consent: implied
(administrative searches) -- traveling by plane, regulated business
91
consent: scope
1) request ("search your car?")
| 2) item indicates looking for (could it fit there?)
92
consent: withdrawing
can refuse, withdraw, or limit scope of consent. BUT must clearly express these limits BEFORE the officer finds the evidence
93
consent/prior sz
if consent happens AFTER unlawful sz, unlawful sz is poison tree that taints the consent!
94
consent: 3rd parties: rule
any person who has joint control or use of shared premises may consent to a valid search, and any evidence seized in plain view may be used against the other occupants
95
consent: 3rd parties: scope
only to common areas -- not private areas where D has exclusive control
96
consent: 3rd parties: who can give consent
if person giving consent has actual authority OR
| reasonable officer would believe person has the authority
97
consent: 3rd parties: who can't give consent
LL
motel owner
employer (for ee's private storage area)
98
consent: objecting co-tenants
CAN'T reasonably rely on 3rd party consent if other resident is present and objecting. BUT if suspect not present and objecting, co-T's consent valid against him
99
hot pursuit: rule
warrantless search for a suspect is lawful when police are in actual hot pursuit of the suspect to apprehend him
100
hot pursuit: scope
ok enter a home, even if not the suspect's home
101
hot pursuit: sz
ok arrest suspect w/o warrant (even if it's in his house)
ok seize any contraband they observe in plain view pursuant to hot pursuit entry
102
exigent circs: rule + kinds
police can search w/o warrant when situation indicates that waiting to get a warrant will result in imminent:
1) destruction of evidence OR
2) escape of the accused, OR
3) risk to police or others in the area
103
exigent circs: rship to hot pursuit
if in a hot pursuit, creates exigency that justifies warrantless entry
104
exigency: evidence n or on suspect's body:
ok search + sz w/o a warrant
IF: there is PC to beleive that nature of evidence makes it easily destroyed/likely to disappear before can get warrant, and
2) procedure for seizing evidence is reasonable, does not shock conscience
(more likely reasonable if only wa to preserve)
105
exigency: crime scene searches
exigency justifies warrantless crime scene search to seek other Vs or remaining killer or violent felon
BUT NOT a general search at the crime scene
106
Terry frisk: def
cursory protective search for weapons that create imminent danger to officer/others nearby
107
Terry frisk: justification
need RS THAT armed + dangerous (NOT to search for evidence)
108
Terry frisk: rship to Terry stop
just bc police conduct Terry stop, does NOT automatically mean Terry frisk is reasonable (for Terry stop justification = crime is afoot)
109
Terry frisk: scope
cursory inspection of outer clothing to confirm or deny that armed (pat-down)
110
Terry frisk: plain touch rule
if frisk results in officer feeling something he knows immediately is weapon or other contraband, ok seize w/o a warrant (plain touch). BUT if just suspects contraband and has ts to manipulate it to make sure, NO pc to sz (manipulation exceeds scope of Terry frisk)
111
Terry frisk: cars
ok brief cursory look in areas of car where weapon could be readily there IF have RS to assume person stopped will have immediate access to weapon
then PV applies
112
administrative searches: rule
no PC or warrant needed -- just RS
113
border searches: cars
no suspicion needed unless doing some disassembly, then RS is enough
114
border searches: bowels
if refuses to submit to x-ray and RS (that ingested narcotics) for detention, can hold until bowel mvt
115
administrative searches: def
agency compliance inspection (admin regs, health and safety codes) -- non crim purpose. usu need administrative warrant (exception: airports)
