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Flashcards in Arrests, Searches & Seizures Deck (77)
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The 4th Amendment has 2 major parts, it:

  1. Protects the right of the people to be secure from ______ and _______; and
  2. States that warrants must be supported by  _______. 

The 4th Amendment:

  1. Protects people to be secure from unreasonable searches and seizures in their home by the government; and
  2. States that warrants must be supported by probable cause

More Info: 4th Amendment


What are 4 key questions you should ask when approaching a 4th Amendment question?

  1. Was there a search or seizure?
    • Was the search or seizure conducted by a government actor?
  2. Was there probable cause?
  3. Was there a valid warrant?
    • Was the warrant defective or did the police act in bad faith?
  4. Was there an exception to the warrant requirement?


When will actions by a private individual trigger the 4th Amendment?

If the individual acted at the direction of a government agent or pursuant to an official policy 


What constitutes a seizure under the 4th Amendment?

When an officer, by show of physical force or authority, intentionally restrains the liberty of the citizen so that they are not free to leave (objective standard). 

In this context, a seizure is also called an arrest


What factors help determine if a seizure has occured?

Basic Rule: If a reasonable person in D's position would have believed he was not free to leave, it's a seizure.

Factors include:

  • Threatening presence of several officers; 
  • Display of weapons; 
  • Physical touching of person; and
  • Indication that compliance with request is an order



What is required for a valid arrest?

  1. Probable cause; and 
  2. Warrant if: 
    • Suspect is in their own home or another's home absent consent or exigent circumstances



When is an arrest warrant NOT required?


  • Arrest is in a public place
  • Arrest is for a misdemeanor punishable by a fine and police witnessed the misdemeanor; 
  • Exigent circumstances exist; or 
  • Police had consent to enter D's home or third party's home


Does an illegal arrest prevent the government from prosecuting D?

No, as long as police have probable cause, they may prosecute and detain D even if the arrest was illegal.

⚠️ However, evidence seized during an illegal arrest may be suppressed at trial.


When can the police stop an automobile? 

Must have reasonable suspicion of illegal activity, unless the stop is at a checkpoint.


When can a private citizen make an arrest ("citizen's arrest")? 


  1. A felony has been committed; and 
  2. Citizen has reasonable belief that the person being arrested committed it 

⚠️ Note: Can be used as a defense if citizen used reasonable force to detain until police arrived.


What is the two-prong test identified in Katz to determine whether or not there was a search?

  1. Did the defendant have a reasonable expectation of privacy?; and
  2. Was the expectation one that society recognizes as reasonable?

If yes, the search is protected by the 4th Amendment.

See Katz v. United States


When does a reasonable expectation of privacy exist under the 4th Amendment?


  1. An individual has a subjective expectation of privacy in the thing searched; and
  2. Expectation is one society recognizes as reasonable

⭐️ Viewed in totality of the circumstances

Katz v. United States


List examples of when there is no reasonable expectation of privacy. 

  1. Objects knowingly exposed to the public; 
  2. Smells emanating from personal belongings; 
  3. Car VIN #'s; 
  4. Handwriting samples;
  5. Voice exemplars;
  6. DNA samples; 
  7. Bank records;
  8. Phone call records; 
  9. Conversations with government informants;  
  10. Open fields; 
  11. Airspace above property higher than 400 feet 
  12. Naked-eye observations of private property; and
  13. Discarded property


What is considered one's home for the purposes of the 4th Amendment?

  1. Home/dwelling itself; and
  2. Curtilage (area surrounding the home). Whether or not area is curtilage depends on: 
    • Proximity of the area to the home;
    • Whether the area is within an enclosure surrounding the home;
    • The nature and uses to which the area is put; and
    • Steps taken by the resident to protect the area from observation by passersby

United States v. Dunn, 480 U.S. 294 (1987)




Are open fields surrounding the home considered curtilage? 

No, even if the area is fenced and has "No Trespassing" signs. See Oliver v. United States



Does an overnight guest in someone's home have a reasonable expectation of privacy? 

Yes, as long as the premises aren't being used for an illegal purpose


Does an overnight guest in a hotel have a reasonable expectation of privacy? 

Yes. A hotel clerk cannot consent to the search. 


What is the Third Party Doctrine and its effect?

An individual who freely shares information with a third-party (e.g. banks, phone companies, or internet service providers) has no reasonable expectation of privacy for that information

⚠️ Exception: Cell Phone Tracking Data (Carpenter v. United States)


Does aerial surveillance of D's property with a plane or helicopter constitute a search? 

If the surveillance is at a height greater than 400 feet, D likely has no reasonable expectation of privacy and thus no search occurred. Florida v. Riley


Does placing a tracker on D's vehicle or other private property constitute a search

Yes, if police physically intruded on D's property to install the tracker. See United States v. Jones


Does using animals (e.g. drug-sniffing dogs) to search for contraband constitute a search?

Yes, if it intrudes upon a constitutionally protected area (i.e. home, curtilage, person)

See Florida v. Jardines, Illinois v. Caballes


What are the requirements for a valid warrant?

Warrant must be: 

  1. Based on probable cause
    • Supported by oath or affidavit 
  2. Describe with particularity the thing/person to be seized and place to be searched; and 
  3. Be issued by a neutral and detached magistrate



The scope of a warrant is limited to: 

Only the premises, person, or items described in the warrant


Are warrants needed for each person to be searched? 

Yes, there must be an independent basis to search each person; just because they are in the same room doesn't mean the search is valid (absent exigent circumstances). 


⚠️ Note: Police can detain subjects not included in the warrant, but they cannot search them.


What are 8 exceptions to the warrant requirement? 

Common Acronym = ESCAPIST

  1. Exigent circumstances;
  2. Searches incident to lawful arrest;
  3. Consent;
  4. Automobile search
  5. Plain view search;
  6. Inventory search; 
  7. Special needs; 
  8. Terry stop and frisk; 

⭐️ The MBE likes you to trick you on these. Memorize these exceptions!


When does probable cause exist?

If the quantity of facts and circumstances would lead a reasonable person to conclude that either: 

  1. The individual in question has committed a crime; or
  2. Specific items related to criminal activity can be found at that particular location

More info: Probable Cause


Probable cause must be supported by what type of facts?

Facts based on either: 

  1. Verifiable and reliable information from an informant; 
  2. Seized evidence; or 
  3. Observations by law enforcement (police are presumed to be reliable sources)



When is an informant tip considered sufficiently reliable to establish probable cause? 

Courts weigh:

  1. The credibility of the information;
  2. The reliability of the informant;
  3. Corroboration by the police; and
  4. An informant's declaration against interest

See Illinois v. Gates


What is the remedy if police act pursuant to an invalid warrant

Evidence obtained during an unlawful search will be inadmissible pursuant to the Exclusionary Rule. 

⚠️ Exception: Evidence is not excluded if police officers relied upon the warrant in good-faith.




When does the good-faith exception to the Exclusionary Rule not apply

If either:

  1. No reasonable officer would have relied upon the warrant;
  2. The warrant is facially defective;
  3. The officer lied or misled the magistrate to obtain the warrant;
  4. The magistrate issuing the warrant was not neutral and unattached; or
  5. The warrant was improperly executed


Who can execute a warrant and within what time frame

Only the police may execute a warrant. Must be executed promptly while probable cause still exists.


What is the "knock and announce" rule?

Absent exigent circumstances, the police must knock and announce their identity before entering a home to execute a warrant

More Info: Knock and Announce


When are police not required to "knock and announce"? 

When police have reasonable suspicion that doing so will:

  1. Endanger officers
  2. Lead to the destruction of evidence; or 
  3. Lead to flight of the suspect


If police violate the "knock and announce" rule, what happens to evidence discovered during the search?

Still admissible. Exclusionary Rule does not apply. See Hudson v. Michigan.


What is the exigent circumstances exception to the warrant requirement?

Police may search without a warrant if waiting to obtain a warrant will result in imminent:

  1. Destruction of evidence; 
  2. Escape of the accused; or 
  3. Danger to police or others in the area

More Info: Exigent Circumstances

⚠️ Note: Not applicable if police create the exigent circumstances so they can bypass the warrant requirement 


What are police allowed to do when in hot pursuit?

If the suspect is a felon, the police may: 

  1. Enter and search a private dwelling
  2. Conduct a warrantless arrest of the suspect on the premises; and
  3. Seize any contraband in plain view

⚠️ Lange v. California (2021) held that a fleeing misdemeanor suspect does not automatically create an exigent circumstance. It is unclear whether the MBE will test this case, but be prepared.


Can police perform warrantless blood tests on drunk drivers?

Yes, only under the exigent circumstances exception if:

(1) BAC evidence is dissipating (“iterally disappearing by the minute") and;

(2) Some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application

⚠️  Note: This is used in extremely narrow circumstances; the driver essentially needs to be unconscious/physically incapable of a breath test. See Mitchell v. Wisconsin (2019)


What is a Terry Stop (also known as a "stop and frisk")?

A brief investigatory seizure by the police when there is reasonable suspicion of criminal activity.

More Info: Terry Stop

⚠️Note: Terry Stops are not arrests, but rather a brief detainment by the police. As such, probable cause is not required, only reasonable suspicion (lower bar). However, if the officer's suspicion is confirmed, it may turn into probable cause to arrest.


reasonable suspicion

Reasonable belief based upon articulable information (more than a mere hunch) that the suspect has or is about to engage in illegal or criminal activity


What is the permissible duration of a Terry Stop?

Time necessary to confirm or deny the police officer's suspicion


When is a police officer allowed to "frisk" a suspect? 

If they have reasonable suspicion that the suspect is armed and dangerous, the officer can conduct a limited search of the suspect 


What is the scope of a "frisk"?

Police are only allowed to do a quick pat-down of the suspect's outer clothing for weapons. Cannot manipulate items. 


What is the "plain feel" exception to a Terry Stop? 

If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon


What is the "Plain-view" doctrine?

A warrant is not required to seize an item if:

  1. The police are on the premises lawfully when they observe the item; and
  2. The incriminating nature of the item is immediately apparent (police may not move objects to get a better view)

More Info: Plain View Doctrine


Do smells fall under the "Plain-view" doctrine? 

Yes, if police have probable cause to believe the smell is from contraband, they can search the item where the odor is coming from 


What is a search incident to lawful arrest ("SITLA")?

Warrantless search of an arrestee and the area within their immediate control (wingspan, lunging area) during a lawful arrest 




If police have a reasonable suspicion that accomplices may be in the home, what actions can they take? 

The police can conduct a cursory protective sweep of spaces where people may hide (closets, under the bed, etc) 


What is the duration of a search incident to lawful arrest?

Contemporaneous with or immediately after the arrest 


Pursuant to a search incident to lawful arrest, can police search pockets and containers

Yes, as long as they are within the suspect's reach and large enough to hold contraband or weapons


Pursuant to a search incident to lawful arrest, can police search the arrestee's vehicle

Yes, if: 

  1. Arrestee has access to the vehicle compartments; 
  2. There is a reasonable belief arrestee may destroy evidence or pose a danger to the officers; and 
  3. There is reasonable belief that the vehicle contains evidence of a crime 


What is an inventory search? 

Constitutional, warrantless search of an arrestee's belongings once they are jailed 


What is the automobile exception to the warrant requirement?

Police may search an automobile and persons within it without a warrant as long as they have probable cause.

Police can search any locked containers in the vehicle and the trunk if the areas could reasonably hold the evidence sought (i.e. have probable cause to do so)

Also applies to motor homes, boats, and airplanes. 


Does the automobile exception apply to parked or immobile vehicles?

No, because the danger of the evidence being removed is significantly diminished


Which types of checkpoints are permissible?

  1. Sobriety checkpoints;
  2. Checkpoints at or near the border; and
  3. Checkpoints to obtain information about a recent crime

⚠️ Checkpoints to test for drugs are not valid 


If a checkpoint is to obtain information about a crime, what requirements must it follow? 

  1. Checkpoint's primary purpose is help law enforcement investigate a crime and advance a public concern
  2. The cars are stopped in a neutral manner; and
  3. Checkpoint minimally interferes with 4th Amendment rights 


Are border searches allowed?

Yes, officials may search anyone at or near the border (including international airports and ports) in a routine manner without a warrant, or probable cause, or reasonable suspicion 



What is the consent exception to the warrant requirement?

If a person has voluntarily consents to a search, no warrant or probable cause is needed. 

Whether or not a person has consented is determined in light of the totality of the circumstances.


What constitutes invalid consent for a warrantless search? 

Consent that was gained by: 

  1. Asserting a fake warrant; or
  2. An unlawful police threat (a threat to do something that the officer has no authority to do)



Are the police required to inform someone of their ability to refuse consent?



If a person has consented to a search, who determines the scope of the search? 

The person who consented to the search. Exceeding the scope will make the entire search invalid. 


Who has authority to consent to a search?

Any person who has joint control or use of shared premises (e.g. roommate, spouse) 


Does a third party have authority to consent to a search? 

Yes, if:

  1. The third party owns or occupies the home; or 
  2. The third party and D jointly own or occupy the home and D is not present (valid even if D had previously objected at another time) 

⚠️ Note: If D is home and objects to the third party giving consent, the third party consent is not valid 



Can a landlord give consent to search a tenant's residence?



Can an employer give consent to search an employee's private storage area?



administrative search

Search carried out by regulatory bodies to enforce compliance with administrative regulations and/or health and safety codes



When is an administrative warrant required for an administrative search?

Generally required for administrative fire, health, or safety inspections of residential or private commercial property. 


What is needed for an administrative warrant to be issued?


  1. Probable cause that an administrative violation has occured; or 
  2. Evidence that establishment has been selected to be inspected

⚠️ Note: Probable cause standard is less stringent than for criminal investigations


Can the police open international mail

Yes, as long as the police have probable cause to do so 


Is criminal evidence found during an administrative search admissible? 

Yes, as long as the search was executed pursuant to a warrant, or the search was a valid, warrantless search 


When are searches of public school students allowed? 

  1. Police have a moderate chance of finding contraband (lower bar than probable cause); 
  2. Search methods are reasonably related to the purpose of the search; and 
  3. Search is not excessively intrusive 


Exclusionary Rule

Holds that evidence obtained in violation of D's 4th, 5th, or 6th Amendment rights is inadmissible at criminal trials to prove D's guilt 

More info: Exclusionary Rule 



The exclusionary rule does not apply to which type of proceedings

  • Grand jury proceedings; 
  • Civil proceedings; 
  • Administrative proceedings; and
  • Sentencing, bail, and parole hearings


What are the exceptions to the Exclusionary Rule

Evidence may still be admissible if it falls underneath these exceptions: 

  1. Independent source: Evidence is discovered by an independent source; 
  2. Attenutation: Relationship between the primary taint and discovery of evidence is sufficiently attenuated as to break the causal chain
  3. Inevitable discovery: Evidence would have been inevitably discovered through legal means
  4. Good faith: Exists when police officers were acting in good faith on a warrant that was later declared invalid (see more: Good Faith Exception
  5. Impeachment: Illegally obtained evidence may be used to impeach D at trial  



Fruit of the Poisonous Tree doctrine

Holds that any evidence obtained from an illegal search is tainted and thus subject to the exclusionary rule unless an exception applies.

More Info: Fruit of the Poisonous Tree Doctrine


Is physical evidence seized as the result of an illegal confession (i.e. one in violation of Miranda) admissible?


Yes, any physical derivative evidence obtained from a confession that violated Miranda is admissible. 

Ex. During an illegal interrogation, D tells police that the gun is hidden under the bed. The gun is admissible at trial. 


What are wiretaps?

Monitoring of electronic communications; require a warrant (except for certain national security purposes) 

More info: Electronic Surveillance


What are the warrant requirements for a wiretap?

The warrant must:

  1. Demonstrate probable cause; 
  2. Name the person going to be wiretapped;
  3. Contain specific details about the conversations that will be overheard;
  4. Explain how the wiretap will be terminated; and
  5. Be limited to a brief period of time