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Federal Criminal Procedure > Search and Seizure > Flashcards

Search and Seizure Flashcards

1
Q

General Summary

A
  • evidence obtained as result of unreasonable search or seizure cannot be used to prove a criminal defendant’s guilt.
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2
Q

Which Actors Matter for Fourth Amendment Purposes

A
  • For something to be a search, it must have been executed by a government agent.
  • There are two important categories of government agents.
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3
Q

Two Categories of Government Agents

A
  1. publicly paid police on or off duty;
  2. private citizens if and only if they are acting at the direction of the police.
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4
Q

Private Security Guards and Government Agents

A

private security guards generally are not government agents.

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5
Q

Definition of a Search

A
  • any official action that intrudes upon a person’s reasonable expectation of privacy
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6
Q

effect of police conduct that is deemed not to be a search

A
  • If it’s not a search, police can do it.
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7
Q

Examples of Police Conduct Not Constituting a Search

A
  1. aerial surveillance of a fenced yard
  2. examination of trash left in yard
  3. determining numbers dialed from residential home (“pen register”) (but not the content of the convos)
  4. having a dog sniff luggage in airport
  5. account records (e.g. bank records) held by a third party
  6. the sound of your voice
  7. odors emanating from your car or luggage
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8
Q

Examples of Police Conduct Constituting a Search

A
  1. rigorous squeezing of luggage in a bus overhead rack
  2. thermal imaging scan of residence
  3. attaching a tracking device to a vehicle and using it for long-term monitoring of the vehicle’s location
  4. bringing a drug-sniffing dog onto the porch of a house
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9
Q

Plain View Doctrine

A
  • officers merely exercise their right to engage in “plain view” and do not search if they:
  1. reach a location without violating the fourth amendment; and
  2. simply look at something in open view
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10
Q

Open Fields

A
  • Not a search if officers go upon any unoccupied or undeveloped area of land that is not part of a home’s curtilage
    • curtilage:area surrounding and used in connection with a residence
      • examples of curtilage: back yard enclosed by a fence; front porch
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11
Q

How to Analyze a S/S question if you’re on the fence about whether the conduct was a search

A

ask yourself if the supreme court can find themselves in the D’s shoe. If so, it’s probably a search.

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12
Q

Requirements for a Search to be Reasonable

A
  1. for a search to be “reasonable”, two general requirements:
    1. must be pursuant to a valid search warrant (but exceptions); and
    2. must be based on probable cause.
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13
Q

Probable Cause Definition for a Reaosnable Search

A

Facts from which a reasonable person would conclude that there is a fair probability that seizable items will be found in the premises.

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14
Q

Reasonable Searches

Probable Cause Proof Requirement

A
  • Must have proof of a fair probability that contraband or evidence of crime will be found in the area searched
  • Hearsay is admissible for determining probable cause
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15
Q

Probable Cause and Informants

A
  1. Police may rely on info obtained from an informant’s tip, even if the information is anonymous.
  2. The sufficiency of the informant’s tip rests on the police corroborating enough of the tipster’s information to allow the magistrate to make a “common sense practical” determination that probable cause exists
    1. if police cite number of times where warrant was reliable, take note
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16
Q

Drug Dogs and PC during Traffic Stops

A
  1. During a routine traffic stop, a dog alert to the presence of drugs creates PC to search the car.
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17
Q

Reasonableness of DNA Cheek Swab

A
  1. When police arrest for a “serious offense,” it is reasonable to take and analyze a cheek swab of DNA
    1. serious offense not defined
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18
Q

Items Subject to Seizure

A
  1. contraband (something illegal to possess)
  2. “fruits” of crime- things you got bc of the crime
  3. instruments of crime
  4. evidence that a crime was committed or that a particular person committed it (“mere evidence”) e.g. you did the crime in a red shirt. Shirt seizable
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19
Q

Warrant Definition

A

judicial order authorizing search and seizure

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20
Q

Information that a Warrant Must be Issued Upon

A
  • Warrant must be issued on information constituting “probable cause”
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21
Q

Warrant Affidavit Requirement

A
  1. Affidavit must set out facts from which issuing magistrate can make independent judgement that probable cause exists
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22
Q

Warrant Specificity Requirement

A
  1. Warrant must describe specifically both:
    1. place to be searched; and
    2. items to be searched for and seized.
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23
Q

General Warrant Rule

A
  1. No “general warrants”
    1. can’t authorize fishing expedition
    2. e.g. can’t be “for evidence linked to the murder”
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24
Q

Announcement/No Knock Entry Rule

A
  1. before entering premises, officers must “knock and announce,” and give occupants opportunity to admit the officers.
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25
Q

Announcement/No Knock Entry Rule Exception

A
  1. if officers had reasonable suspicion that occupants inside would either resist with force or remove/destroy items for which warrant is issued.
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26
Q

Announcement/No Knock Entry Examples

A
  1. Deemed reasonable when PC occupant was dealing drugs, had violent criminal history, and kept a cache of weapons in the home
  2. But, unreasonable when person just a drug manufacturer with no other aggravating circumstance
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27
Q

Scope of Search

A
  1. Search must be limited to both:
    1. place described; and
    2. within that place, those locations where described items might reasonably be expected to be located.
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28
Q

Items Subject to Seizure

A
  1. Officer can seize:
    1. items reasonably believed to be those described; and
    2. other items found in “pain view” during search if PC exists to believe they are seizable.
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29
Q

Seizure and Plain View

A
  1. Officers executing a warrant can seize some undescribed items they discover in “plain view” during search.
  2. Plain view- can’t do anything to find that item other than observe it while in the process of searching what you’re searching for.
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30
Q

When Plain View does not Apply

A
  1. Plain view seizure rule does not apply if officers are searching improperly
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31
Q

Plain View Seizure/Search Distinction

A
  1. Plain view is a seizure, not a search. You can seize something in plain view, not search it. So you can’t just go into a seemingly innocent backpack because it’s plain view.
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32
Q

Challenges to Warrant for False Information

A
  1. must show that police officer
    1. misstated facts
    2. intentionally or recklessly with respect to the trust
    3. and that the misstated fact was material, so that without that fact, the affidavit was not sufficient
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33
Q

Warrant Requirement List of Exceptions

A
  1. Consent
  2. Automobile
  3. Exigent Circumstances
  4. Special Needs
  5. Search Incident to a Lawful Arrest
  6. Inventory Searches
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34
Q

Consent Exception

Warrant/PC Requirement

A

need not a warrant or PC for consent

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35
Q

Consent Requirements

A
  1. Must be voluntary
    1. can’t be coerced.
  2. Must be from either:
    1. actual authority, or
      1. someone with a general right of access to the premises
    2. apparent authority
      1. someone who police reasonably believes to have that access
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36
Q

Consent and Joint Occupants

A
  1. Officers need consent from only one of several joint occupants
  2. If joint occupant at whom search is directed is present and actively objecting, consent from other joint occupants is not effective.
    1. police can just wait for the objecting occupant to leave, arrest him and then search
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37
Q

Scope of Consent

A
  1. covers what reasonable person in the situation would understand the words used to mean
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38
Q

Apparent Authority

A
  1. if a police officer obtains consent to search from someone who lacks “actual” authority to grant it consent still valid if:
  2. the officer reasonably believed that the consenting party had “actual” authority.
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39
Q

Apparent Authority Exceptions

A
  1. Hotel operators
  2. landlords
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40
Q

Apparent Authority Example

A
  • was found where officers believed that a woman had actual authority to consent to their entry into her boyfriend’s apartment
  • b/c she referred to the apartment as “ours,” had a key to enter it, and claimed to keep personal belongings there.
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41
Q

Notification of the Right to Refuse Consent

A

Officers don’t have to tell you that you have the right to refuse consent.

42
Q

Consent Scope

A
  1. If you give officer consent to search your car with no express limits, he can search inside containers in the vehicle too
  2. But, you can set the scope of the consent to certain areas only, and cops still cannot search anywhere the suspected items could not reasonably be seized
43
Q

Vehicle (Automobile) Exception to the Warrant Preference Rule

A
  1. Moving vehicles and those parked in public places can be search without a warrant
  2. But, police need PC to believe contraband is in the car.
44
Q

Automobile Exception and Routine Traffic Stops

A
  1. cop does not need PC at the time he pulls someone over. They can use things that happened after police stopped person to determine PC
45
Q

Scope of Search under Automobile Exception

A
  1. search can extend to any place where items might be found.
46
Q

Search Incident to a Lawful Arrest and Automobiles

A
  1. Can search vehicle after arresting someone who was in the vehicle:
    1. if there is reason to believe evidence related to the crime of arrest is located in the vehicle or the arrestee is unsecured.
47
Q

Scope of SILA search of Automobile

A
  1. If searching under SILA, can search passenger compartment (including glove compartment) but not the trunk.
48
Q

SILA

Search of Automobile after Officer has Secured Arrestee

A
  1. the officer can search the arrestee’s vehicle ONLY if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest is made.
    1. e.g. if arrested and secured for speeding, can’t search for drugs.
49
Q

Inventory Exception and Automobiles

A
  1. properly impounded vehicle may be inventoried pursuant to standardized procedure.
  2. If it violates procedure, cannot inventory search.
50
Q

Search of Contents of Containers in Cars

A
  • Contents of containers in car can be examined if car can be searched
51
Q

Pretextual Stops

A
  1. definition: stopping someone for a reason other than named, usually a nefarious reason
  2. If officers have PC to believe a traffic violation was committed, their actual motive is irrelevant
52
Q

Exigent Circumstances Elements

A
  1. A warrantless search is permitted if officers have both:
    1. a reason to believe delaying the search to get a warrant would result in removal or destruction of the subject items, and
    2. PC to believe seizable items will be found
53
Q

Exigent Circumstances Warrantless blood draws in DWI cases

A
  1. can be done under exigent circs because BAC dissipates in the blood stream.
  2. But, police cannot do this all the time, nor automatically. Look at the totality of the circs to see if it is reasonable for police to be able to get the warrant.
54
Q

Exigent Circumstances Hot Pursuit of a Fleeing Felon

A
  1. hot pursuit allows police, when looking for a suspect, to enter a suspect’s home or that of a 3rd party into which he has fled.
  2. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.
55
Q

Exigent Circumstances PC requirement

A

Exigency alone is NOT sufficient, still need PC. No “gut feelings”

56
Q

Special Needs Searches Rule

A
  1. Warrantless search permitted if law enforcement, governmental employers, or school officials have an interest other than law enforcement
57
Q

Special Needs Searches

Random Drug Testing

A
  1. SCOTUS has approved warrantless, random drug tests for:
    1. railroad employees following an impact accident
    2. customs agents who are responsible for drug interdiction
    3. public school children who participate in any extracurricular activities
    4. but NOT for political candidates
58
Q

Special Needs Searches

Government Employees’ Desks and Files

A
  1. warrantless searches of govt employees’ desks and files are permitted to investigate work-related misconduct.
59
Q

Special Needs Searches

Students “Effects” in Public Schools

A
  1. Warrantless searches of the effects of public schoolchildren (e.g. purses and backpacks) are permissible to investigate violations of school rules.
60
Q

Special Needs Searches

Students “effects” in Public Schools

Age of Schoolchildren

A
  • No differences in standards due to age of schoolchildren
61
Q

Special Needs Searches

Students “effects” in Public Schools

Suspicion Requirement

A
  1. School officials only need reasonable suspicion that student has banned items
62
Q

Special Needs Searches

Students “effects” in Public Schools

Scope of Search

A
  1. Can even strip search
63
Q

Special Needs Searches Border Searches

A
  1. neither citizens nor non-citizens have any 4th amendment rights at the border with respect to routine searches of persons and effects.
  2. body cavity searches not likely routine
64
Q

Special Needs Searches

Examples of Conduct Not Permitted Under the Exception

A
  1. the involuntary drug testing of pregnant women was deemed impermissible where the S. Ct. found that its primary purpose was to coerce patients into a substance abuse program through the threat of criminal prosecution.
  2. Other suspicionless drug tests are not permitted where their primary purpose is to gather criminal evidence for use by law enforcement.
    1. e.g. DWI checkpoint is for public safety, not to criminalize ppl
65
Q

Search Incident to a Lawful Arrest Rule

A
  1. if a valid custodial arrest is made, there is an automatic right to search 2 places:
    1. person of the arrestee (which includes pockets and items found on the person of the arrestee) and
    2. area of possible reach.
66
Q

SILA Timing

A
  1. the search incident to arrest must be contemporaneous in time and place with the arrest.
67
Q

SILA arrest inside premises

A
  1. officers automatically can look in immediately adjoining places where persons might be concealed
  2. protective sweep of entire premises can be made but only if officers have RS that other dangerous persons might be present
68
Q

SILA

Reasonable Arrest Requirement

A
  1. SILA arrest requires PC to believe person committed offense
69
Q

SILA and Arrest Warrents

A
  1. Warrant is req only if premises are entered to search for suspect
    1. if searching the suspect’s own residence, an arrest warrant is sufficient
    2. If searching other premises, warrant required.
70
Q

Inventory Searches

A
  1. following arrest, police may inventory all of the arrestee’s personal belongings.
  2. Police may also inventory the contents of an automobile
71
Q

Inventory Searches and Department Policy

A
  1. In conducting the inventory, police must follow an existing department policy.
72
Q

Seizure of Inventoried Property

A
  1. Police can seize any contraband found during the inventory.
73
Q

Most common inventory scenarios

A
  1. Arrestees: when booked into jail
  2. Vehicles: when impounded
74
Q

Nonarrest Detentions and Citizen-Officer Contact

A
  1. Detention, not valid arrest, can often be justified as a Terry stop.
75
Q

Terry Stop Definition

A

a brief detention or “seizure” for the purpose of investigating suspicious conduct.

76
Q

Where Terry Stops can Take Place

A
  1. Terry stops can take place anywhere, e.g. on the street, in a car, in an airport concourse, or on a bus
77
Q

When a Terry Stop Turns into a Seizure

A
  1. when, based on totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer questions.
78
Q

Considerations for determining if a Terry stop is a seizure

A
  1. In evaluating whether an individual has been seized during questioning by law enforcement, you should consider:
    1. whether an officer brandishes a weapon
    2. the officer’s tone and demeanor when interacting with the individual questioned; and
    3. whether the individual was told she had the right to refuse consent.
79
Q

Seizure and Fleeing Suspects

A
  1. When being pursued by a police officer, an individual is seized only if he submits to the officer’s authority by stopping or if the officer physically restrains him.
    1. so, if suspect runs from cops and throws out/accidentally spills drugs, he wasn’t seized and drugs admissible.
80
Q

Seizure and Traffic Stops

A
  1. in a traffic stop, both the driver and the passengers are seized, such that either can challenge the legality of the stop
  2. NOT the same for searches
81
Q

Seizure and Dog Sniffs

A
  1. it is permissible for K9 officers to sniff the exterior of car during traffic stop while computer is checking DL and registration. No more a seizure than if K9 wan’t there
  2. K9 sniffs must not prolong the stop unreasonably
82
Q

Terry Stops and Reasonable Suspicion

A
  1. A terry stop for investigation may be made on reasonable suspicion. Some objective basis for officer’s suspicion that suspect has committed, is committing, or is about to commit a crime.
  2. Anonymous tip not enough for RS if not adequately corroborated
83
Q

Limits on Terry Stops

A
  1. cannot be lengthy-too long is seizure and you need PC
  2. suspect cannot be extensively moved (not to station house) and
  3. no automatic right to search.
84
Q

Terry Frisk General Rule

A
  1. officer needs RS that the person is armed and dangerous.
  2. If RS that person is armed and dangerous, officer can pat down the outer layer of the clothing.
85
Q

Terry Frisk and Finding Contraband

A
  1. If the officer finds contraband without moving/further feeling the object in the person’s pockets, she can seize it. If officer doesn’t recognize item, cannot pursue further.
  2. If officer “immediately tells” the item is drugs, they can seize it.
    1. can’t conclude it’s not a weapon and continue to feel the item and recognize it as drugs. Must be immediate.
86
Q

Car Frisks Rule

A
  1. if an officer is conducting a traffic stop,
  2. and believes that a suspect is dangerous,
  3. he may search the passenger cabin of the suspect’s vehicle,
  4. limited to those areas in which a weapon may be placed or hidden—not the trunk.
87
Q

Car Frisks Reasonable Suspicion Standard

A
  1. For terry stops- specific and articulable facts that inform an officer’s belief that criminal activity is present
  2. For Terry frisks- specific and articulable facts that suggest a suspect is armed and dangerous.
  3. Justified by a concern for officer safety only. It is not a general search for criminal evidence.
88
Q

Seizure

A
  1. a suspect is seized only if either:
    1. officer physically restrains him; or
    2. the officer makes a “show of authority” and the suspect submits.
89
Q

When an Arrest Occurs

A
  1. whenever the police takes someone into custody against their will for prosecution or interrogation
90
Q

De Facto Arrest

A
  1. when police compel someone to come to the police station for questioning or fingerprinting.
    1. but if you come voluntary, you’re not arrested.
91
Q

Standard of Proof for Arrests

A

Probable Cause

92
Q

Which offenses are arrestable

A
  • all arrestable offenses per that jurisdiction’s governing body
  • even those punishable by a monetary fine only
93
Q

Arrest Warrant and Public Places

A
  1. No warrant required to arrest someone in a public place (applies to felonies)
    1. warrantless arrests for misdemeanors- misdemeanor must be committed in an officer’s presence.
94
Q

When an arrest warrant is required

A
  1. absent an emergency, officers need a warrant to arrest someone in his or her home.
  2. to arrest someone in the home of a third party, police officers need an arrest warrant and a search warrant.
95
Q

Common Enterprise Theory

A
  • If an officer is conducting a traffic stop,
  • and discovers evidence that suggests a common unlawful enterprise between the driver and his passengers,
  • he may arrest any or all of them,
  • based on the reasonable inference of shared dominion and control over the contraband.
96
Q

VA Arrest Laws

A

VA has codified CL rules on arrest, with some distinctions

97
Q

VA Codified Rules on Arrest for Felonies

A
  1. An officer may arrest:
    1. any person who commits any crime in the officer’s presence
    2. anyone the officer has reasonable grounds or PC to suspect person has committed a felony not in the officer’s presence
98
Q

VA Codified Rules on Arrest for Other Crimes

A
  1. officer may arrest for misdemeanor not committed in his presence when:
    1. officer receives a telephone or radio message that a warrant for such an offense is on file, or
    2. offense involves assault and battery, and arrest is based on PC upon reasonable complaint of an eyewitness.
99
Q

How to tackle VA Crim Pro Essay

A
  1. VA law is linked to old CL rules, but growing trend is toward exceptions to misdemeanor rule so long as it involves crime that might involve violence.
  2. ID common law and codified rules. Discuss strict application. Address allowing possible exceptions
100
Q

VA specific statutory exceptions to warrant requirement for arrest

A
  1. motor vehicle crimes
  2. shoplifting
  3. warrant on file
  4. public drunkenness
  5. assault and battery against family or household member

Federal Criminal Procedure (8 decks)

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