5/20 Flashcards
(18 cards)
Exceptions to the Warrant Requirement
ESCAPIST
- Exigent circumstances
- Search incident to arrest
- Consent
- Automobile
- Plain view
- Inventory
- Special needs
- Terry (stop & frisk)
Warrantless Search - Search Incident to Arrest
Police may search the person and areas into which they might reach to obtain weapons or destroy evidence. Must be constitutional and contemporaneous with the arrest (but doesn’t mean simultaneous).
SITA-Scope
The person and the areas within the person’s wingspan can be searched. This includes body, clothing, and any containers within the arrestee’s immediate control.
LEO can also do protective sweep of the area if they believe accomplices may be present.
SITA-Automobiles
LEO can search the passenger cabin, including closed containers, but not the trunk.
LEO can conduct a search if (1) the arrestee if unsecured and still may gain access to the interior; or (2) the officer has reason to believe the vehicle contains evidence relating to the crime for which the arrest was made.
Warrantless Search - Consent
Warrantless search is valid the the police have voluntary consent. LEO do not need to tell individuals they have the right to refuse consent.
Consent-Apparent Authority
If LEO obtains consent to search from someone who lacks actual authority to grant it, the consent is still valid under the 4A, provided the officer reasonably believes the consenting party had actual authority.
Warrantless Search - Automobile Exception
If police have probable cause to believe a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.
Warrantless Search - Terry Stop & Frisk
A brief detention or “seizure” for the purpose of investigating suspicious conduct.
A Terry frisk is a pat-down of the outer clothing and body to check for weapons that is justified by an officer’s belief that a suspect is armed and dangerous. Applies to cars, too.
LEO can seize weapons and items they recognize as contraband without manipulating the object.
Warrantless Search - Terry Evidentiary Standard
“Reasonable suspicion.” Less than probable cause.
To stop, there must be a “specific and articulable facts” that inform an officer’s belief that criminal activity is present.
To frisk, there must be “specific and articulable facts” that suggest a suspect is armed and dangerous.
When seizure occurs
A reasonable person would not feel free to leave or to decline an officer’s request to answer questions.
For Terry Consider:
(1) Whether the officer brandishes a weapon;
(2) The officer’s tone/demeanor; and
(3) Whether the individual was told they had the right to refuse consent.
Or, in pursuit situations, only seized when the individual submits to the officer’s authority by stopping or if the officer physicall restrains them.
Search & Seizure Overview
S&S conducted by government agents satisfies 4A if:
(1) supported by a valid & properly executed warrant;
(2) supported by a properly executed but defective warrant saved by officer’s “good faith” or
(3) Warrantless and comply with an exception (ESCAPIST).
Attractive Nuisance Doctrine
(1) Artificial dangerous condition exists;
(2) possessor knows or should know children are likely to trespass;
(3) child, because of their age, fails to appreciate the risk; and
(4) utility of maintaining the condition is slight compared to the risks involves.
If it is unlikely that children will trespass, it is reasonable to do nothing. It is not required that the child is attracted onto the property by the dangerous condition.
Licensees
E.g., relatives, friends, social guests, solicitors; one who enters land with owner’s permission for their own purpose or business.
Owed a duty to be protected from all hazardous conditions that are (1) concealed and (2) known to the land possessor in advance.
Owner/occupier is not liable for dangerous conditions they should have discovered on their own.
Invitees
E.g., store patrons; one who enters land held open to the public or who enters with owner’s permission to confer a commercial benefit.
Owed a duty to be protected from all hazardous conditions that are (1) concealed and (2) known to the land possessor or could have been discovered by a reasonably inspection.
Duty to inspect & make safe.
Neg. IED
“Near miss” cases. When a defendant creates a foreseeable risk of physical injury to the plaintiff, will be liable if
(1) negligence established;
(2) the plaintiff is within the zone of danger (the plaintiff is sufficiently close to the defendant such that they are subject to a high risk of a physical impact); and
(3) the plaintiff suffers physical symptoms from the distress.
Bystander Cases
Plaintiffs outside the zone of danger may recover if (1) negligence;
(2) plaintiff was present at the time; and
(3) a close relative (only spouse, parent, minor child) of the third party or suffered bodily harm.
Defenses to Strict Liability
Knowingly encountering danger bars recovery. (1) Assumption of the risk (2) unforeseeable misuse and (3) adequate warnings. (Must be adequate, i.e., understandable, prominently displayed, etc. But even a warning is often not enough.).
Some states apply comparative negligence; contributory negligence is not a defense.
Defamation
DPFFD
(1) Defamatory statement that specifically identifies the plaintiff; (2) published to a third party; (3) falsity of the defamatory language; (4) fault on the part of the defendant; and (5) damages.
If public figure– need actual malice (reckless disregard for truth)
If public matter– need negligence.
