Constitutional Law Review- Session 14

Question 1

Frequent Question

Under what circumstances can an officer search without a search warrant?

Answer 1

S = SEARCH INCIDENT TO ARREST
P = PLAIN VIEW
A = AUTOMOBILE
C = CONSENT
E = EXIGENT CIRCUMSTANCES
|
S = STOP, QUESTION, FRISK
H = HOT PURSUIT
I = INVENTORY
P = PUBLIC PLACE
S = SOLE OCCUPANT IN HOMICIDE CASE IS VICTIM

S-P-A-C-E = S-H-I-P-S

Question 2

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

Answer 2

• Limited to the person arrested, the clothing he is wearing, containers concealed on their person, and the lungable/ grabbable area.
• If you remove the individual from a vehicle the lungable/ grabable area you can no longer freely search it
• Carried containers such as a suitcase are different. There must be a reason to search People v. Gokey

Question 3

What was the outcome of the GOKEY CASE regarding searches?

Answer 3

Search of a duffel bag containing marijuana was deemed NOT GOOD

This indicates that searches of containers carried by the arrested person may not be valid.

Question 4

What was the outcome of the SMITH CASE regarding searches?

Answer 4

• Police stopped Smith for VTL
• He was wearing bulletproof vest, made officer suspicious
• Police searched briefcase before Smith was actually arrested and found weapon
• Court ruled search was not justified because arrest had not yet occurred and no evidence briefcase posed immediate danger
• Wearing a buletproof vest alone does not create probable cause or justify search of separate item like a briefcase

Question 5

What was the outcome of the JIMENEZ CASE regarding searches?

Answer 5

• Officers respond to report of a man with a gun
• Approached Jimenez and searched heavy purse he was carrying without arresting him first
• Firearm found
• Police claimed it was search incident to arrest
• Court ruled no probable cause to arrest at time of search
• Searches can not be retroactively justified because individual is arrested later, probable cause to arrest must precede search incident to arrest

Question 6

Is it unreasonable to search a prisoner’s clothes 10 hours after an a

Answer 6

No, things like blood stains or paint fragments could be obtained

Question 7

Can a search incident to arrest occur for something as simple as a petty offense?

Answer 7

Yes, a search incident to arrest can be made regardless of the seriousness of the charge, however if a summons is usual procedure do not search.

Question 8

Can garbage outside someone’s home be searched without a warrant?

Answer 8

Yes, California v. Greenwood ruled there is no reasonable expectation of privacy in garbage left outside for collection because it is exposed to the public and therefore no warrant is required.

Question 9

Can a narcotics- sniffing police dog be used in the hallway of a multiple person dwelling?

Answer 9

Yes, if the police have reasonable suspicion of narcotics activity at the location.

Question 10

If a defendant is arrested in his home for robbery can police search other areas of the house?

Answer 10

Yes police can search other areas of the house to check for bad guys in the interest of officers’ own protection. If evidence or contraband is found it is ok because the reason for searching was lawful.

Question 11

When can police search a vehicle parked on the highway (a public place) without a warrant?

Answer 11

If there is PROBABLE CAUSE to believe it contains evidence or contraband

This rule extends to motor homes parked in a public place as well.
California v. Carney

Question 12

Following the arrest of an occupant of a vehicle under what circumstances can officers search the interior passenger compartment and containers found therein, locked or otherwise?

Answer 12

If the officers have reason to believe Evidence, Endanger, Escape, and there is a nexus between the arrest and the search

Question 13

What do instances such as:
* Searching for chambermaid
* Questioning kidnapper regarding whereabouts of victim
* Odor coming from an apartment, dead body found

Have in common?

Answer 13

Instances where constitutional safeguards are put on hold

Question 14

How does consent to search a location work regarding situations where multiple people have an equal right to privacy?

Answer 14

• Anyone with an equal right to privacy may consent to the search of the location but if any party objects even when another consents the location of items may not be searched
• If police arrest one of these individuals and remove them another may consent to search of the location but if the arrested party said no before being removed then no search can take place

Question 15

What is required for a consent search to be valid?

Answer 15

Consent must be FREELY and VOLUNTARILY given

The presence of multiple officers may cast doubt on the voluntariness of consent.

Question 16

Do inventory searches violate an individual’s 4th amendment rights?

Answer 16

• No inventory searches conducted in accordance with department procedures do not violate 4th amendment rights.
• Officers may search autos, packages in auto, or packages carried by individuals at time of arrest.

Departments should have official procedures regarding these circumstances

Question 17

Can police use other agencies to search packages or belongings of others?

Answer 17

No use of others like customs to search belongings or packages is no good if police search otherwise would not have been good

Question 18

What standard of proof is required for officers to seize contraband in plain view?

Answer 18

It is not enough for officers to have reasonable suspicion they must have at least probable cause items were illegal or stolen.

Remember the example an officer cant move and check behind a stereo in a defendant’s home to see if the stereo was stolen. Must be readily apparrent or use serial numbers clearly visible without manipulating the object

Question 19

Does search for an auto permit officers to enter a premise in search for that auto?

Answer 19

No the automobile exception does not permit an officer without a warrant to enter a home or its curtilage to search for the vehicle therein

Question 20

Frequent Question

Can hearsay contribute to probable cause?

Answer 20

Yes probable cause (51% / 49%, more likely than not) otherwise known in NYS as reasonable cause to believe is the product of all factors, plus experience and hearsay can contribute to this conclusion?

Frequent test question involves whether hearsay can contirbute to probable cause

Question 21

Frequent Question

What is the significance of the Aguilar/Spinelli Test?

Answer 21

It assesses the reliability of an informant based on two prongs:
* Is the informant reliable?
* Is the current information reliable?

This test is crucial in establishing probable cause based on informant information.

Question 22

What can prove the reliability of an informant?

Answer 22

When an informant gives a police officer information which is independently verified by the officer, the reliability of the informant is not an issue

Question 23

Can information given to officers by another police agency give rise to probable cause?

Answer 23

Yes probable cause can be based off information obtained from other officers or agencies

Question 24

Why should you avoid bringing a non consenting person to the station house on less than probable cause?

Answer 24

Any statements made will be supressed

Question 25

Can the passing of a glassine envelope in a high crime, narcotics prone area give officers probable cause?

Answer 25

* Of course, but this is **not a necessity.** * In **People v. Jones** officers observed an exchange of a small object for money in a narcotics prone area * Defense argued without seeing glassine envelope there was no probable cause * Court of appeals held that sight of a **glassine envelope was not required, totality of the circumstances established probable cause**

Question 26

What is needed for warrantless arrest of a person in their home?

Answer 26

Absent consent or exigent circumstances warrantless arrest of a perosn in their home is not permitted. Warrant of arrest and search warrant required. **Exigent circumstances include:** * Hot pursuit * Evidence, Endanger, Escape

Question 27

What is the rule regarding executing a warrant of arrest at another person's home?

Answer 27

Must have both a **WARRANT of ARREST** and a **SEARCH WARRANT** unless there is consent or exigent circumstances ## Footnote * Exigent circumstances include hot pursuit or the need to prevent evidence destruction. * An overnight guest has the same expectation of privacy as a resident.

Question 28

What is an anticipatory search warrant?

Answer 28

* A search warrant that is based on probable cause that **evidence of a crime will be found at a specific location in the future** after a given event has occurred. * **Does not authorize immediate search**. Becomes valid after the stated condition is met

Question 29

When executing a search warrant what individuals found inside the premises can be detained

Answer 29

Police Officers executing a search warrant are permitted to detain **all persons found inside or on a premises** while a the search is conducted (even when there is no particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers).

Question 30

What effect can failing to name the correct issuing court have on a warrant?

Answer 30

This is a jurisdictional defect which can **render the warrant invalid**

Question 31

Does the fact that cell phone location records are held by a third party eliminate the need for search warrants?

Answer 31

No **search warrants are still required** due to the uniquestion nature of cell phone location records

Question 32

What is generally needed to search the cell phone of an arrested individual?

Answer 32

Consent or search warrant

Question 33

# Frequent Question What are the four recognized police encounters with the public that might trigger Fourth Amendment rights?

Answer 33

* Request for information (Articulable reason to approach) * Common-law inquiry (Founded suspicion of criminality) * Stop, Question, and Frisk (Need reasonable suspicion) * Arrest (Need probable cause) ## Footnote Each encounter has different standards for justification.

Question 34

What happens if an officer sees a nervous man cross the street with a bulge near his waist band?

Answer 34

* Nervous man who crosses street to avoid police can be approached and questioned (**articulable reason**). * Bulge on waistband (**suspect criminality**), police can properly ask him to expose the bulge.

Question 35

What is significant about flight of a suspect when approached by a police officer on **less than probable cause**?

Answer 35

FLIGHT of the suspect, when coupled with other factors, will **raise SUSPICION to REASONABLE SUSPICION** and a chase and forcible stop will be justified. Ex: 1. In PEOPLE v. LEUNG, police saw an exchange of a 3 x 5 brown manila envelope in a high-crime, narcotics-prone area. Police called to the person and the person fled. Pursuit and forcible stop was OK. 2. In PEOPLE v. MARTINEZ, police saw a person remove a HIDE-A-KEY from behind a steel gate. Suspected narcotics. Suspect fled into store. Police followed, etc. OK.

Question 36

What is the only purpose of the frisk portion of stop/ question/ frisk?

Answer 36

The FRISK portion of the STOP/QUESTION/FRISK law is **ONLY justified from a safety standpoint**. Also, the reasonable suspicion may be founded on personal observations of the officer or on information from a reliable informant.

Question 37

In a stop and frisk situation following an alleged crime is it appropriate or inappropriate to bring the suspect to the victim?

Answer 37

**Appropriate**, In a STOP AND FRISK situation (reasonable suspicion) the suspect may be brought to the victim if this would be l**ess time consuming** than bringing the victim to the suspect.

Question 38

Under what circumstances can an individual suspected of a crime be handcuffed?

Answer 38

* When police have reasonable suspicion to STOP, the suspect may be handcuffed prior to questioning if the **crime suspected is serious and other safety factors are involved** (dark alley, etc.). It is known as a non- arrest detention. * **Release immediately if no probable cause to arrest.**

Question 39

If a witness to a crime that points out suspect to police leaves and can not be found is reasonable suspicion gone?

Answer 39

**No**, officers still have reasonable suspicion to stop, question, and frisk

Question 40

Does NYS recognize the plain touch exception?

Answer 40

**No**, and especially not for drugs, **officers dont frisk for drugs only weapons**

Question 41

Does a car stop with emergency lights constitute a forcible stop?

Answer 41

* **Yes**, when police pull car over using siren and turret lights, this is a FORCIBLE STOP and requires **reasonable suspicion of crime or commission of traffic infraction. ** * Calling in plate number AFTER an unauthorized stop and **finding out car is stolen doesn't cure the bad stop.**

Question 42

Can an officer remove what he believes to be a weapon from a vehicle while occupants are still inside the vehicle?

Answer 42

**Yes**, when a police officer STOPS a motor vehicle based on REASONABLE SUSPICION, etc., and sees something on the seat or floor while the **occupants are still in the car**, and what he sees could be a weapon, **he may seize it**. ## Footnote Be aware rules change when occupants are out of the auto and there is no immediate threat

Question 43

Is an anonymous tip of a man with a gun sufficient to justify a stop and frisk?

Answer 43

* **No**, according to Florida v. J.L. an anonymous tip with no predictive information of conduct or corroborating behavior is not enough to justify the stop. **Officers must corroborate with observed suspicious behavior** * Prevents use of anonymous tips to bypass reasonable suspicion ## Footnote * **However in the example of:** Radio call "man with a gun." Anonymous source. At location many people present. One man backed away and moved both hands to his waistband. **FRISK OK**. You don't have to "await the glint of steel." * His behavior supported the reasonable suspicion

Question 44

Can you order a motorist stopped for a VTL out of their auto?

Answer 44

Yes, any motorist can be directed to exit their vehicle however manual for police advises against this. **Exceptions:** * Danger from weapons or eratic behavior * DWI assessment or vehicle search * Stop becomes criminal investigation

Question 45

When conducting vehicle enforcement like roadblocks or checkpoints what is important to note about the way in which vehicles are selected?

Answer 45

* **Indiscriminate** stopping of motor vehicles is** NOT permitted.** * **Non-arbitrary**, systematic car-stop is **OK** (every 3rd car etc.)

Question 46

Is a dirty rental vehicle sufficient grounds for a car stop?

Answer 46

No, same as any other car

Question 47

Regarding stop, question, frisk are their some circumstances that justify a frisk for weapons automatically?

Answer 47

Stop, question, frisk based on reasonable suspicion, certain **SERIOUS crimes (robbery, burglary, assault, etc.)** will automatically justify a frisk for weapons.

Question 48

Is a frisk for weapons authorized if an individual refuses to state whether they are armed or show their hands?

Answer 48

**Yes**, a frisk for weapons is justified in this instance

Question 49

# Frequent Question Where can a stop question frisk take place and what must be the officer's belief?

Answer 49

* Only in your **GAOE** * Reasonable suspicion that the individual is committing, has committed, or is about to commit a **Felony or PL Misdemeanor**

Question 50

When are miranda warnings required?

Answer 50

* Miranda is required for custodial interogations * Miranda = custody and interrogation * If a suspect is invited to the station house and free to leave Miranda is not required. * He can be questioned without miranda because he is not in custody ## Footnote Bear in mind if your detective area is behind locked doors etc this may not give the impression they are free to leave

Question 51

When police see 4 people behind store at 4 AM and they flee when police approach. **Is it INTERROGATION** for police, at gun point, to say, "What's going on here?"

Answer 51

**NO** This references the **emergency doctrine** (situation is actively unfolding)

Question 52

Armed robber arrested, but shotgun not found. In R.M.P., one police officer said, "**I wish we had found the shotgun**; the retarded kids in the nearby school might find it and get hurt." Defendant told them where shotgun was. **Is this INTERROGATION** ?

Answer 52

Court said this was **NOT INTERROGATION** because police did not anticipate response from prisoner. **MIRANDA = CUSTODY AND INTERROGATION**

Question 53

Tondelayo was questioned regarding a homicide. She was at home and **not in custody**. 15 hours later she was taken into custody, given Miranda, and questioned again. **Was the initial questioning without Miranda improper**?

Answer 53

**NO.** **MIRANDA = CUSTODY AND INTERROGATION**

Question 54

# Frequent Question What is the consequence of police questioning before giving Miranda warnings?

Answer 54

* If police arrest, question, get statements, then give Miranda and get the same admissions, **NO GOOD**! Miranda should have been given prior to initial questioning if the events were a continuous chain. ## Footnote Confession or information obtained can be thrown out

Question 55

Can an arrested person **waive Miranda** rights **for a current charge** if they **have counsel for a prior, unrelated matter**?

Answer 55

**Yes** * They may properly waive Miranda rights so long as the charge they are in custody for is unrelated to the charge for which they have representation ## Footnote * If the current questioning is **likely or intended to elicit incriminating responses** for the charge for which the defendant has counsel the **statements will be supressed**

Question 56

What happens if an arrested person says he wants a lawyer?

Answer 56

* **Right to counsel is absolute** unless the statement is equivocal Thes **ambiguous or uncertain requests must be clarified** and **may not trigger the absolute right to counsel** ## Footnote Ex. "Do you think I need a lawyer?" or "I was going to call my friend, George Mullins."

Question 57

Are Miranda warnings required when police ask a robbery suspect about a gun in an emergency situation? ## Footnote Ex. Robber is fleeing scene, victim shouts "watch out hes got a gun". Police then catch him and say "wheres the gun?"

Answer 57

No, they need not give Miranda warnings ## Footnote It is in the nature of an emergency re: public safety.

Question 58

Can a mentally disabled individual waive Miranda Rights?

Answer 58

Yes, if **extra effort** is made to **ensure understanding**

Question 59

Are Miranda warnings required for pedigree questions asked after a D.W.I. arrest?

Answer 59

* **No**, they are not required Testimonial questioning requires miranda: * How much did you have to drink tonight, **no good** without Miranda

Question 60

What is important to note about the duration an iinterrogation can last?

Answer 60

Miranda warnings and a voluntary waiver by the suspect do not permit prolonged and continuous interrogation of the suspect - if the interrogation amounts to coercion, the defendant’s statements will be deemed involuntary and inadmissible as evidence against the defendant at trial.

Question 61

# Frequent Question What happens when an attorney for an arrested person **notifies police** that **he is the defendant's attorney**?

Answer 61

RIGHT TO COUNSEL IS ABSOLUTE

Question 62

Does a defendant have a right to counsel when an ACCUSATORY INSTRUMENT is filed against a defendant?

Answer 62

Right to counsel **on that charge** is absolute

Question 63

What is the **Rogers Rule** regarding defendants in custody?

Answer 63

A defendant represented by counsel on that charge has an **absolute right to counsel**

Question 64

What occurs **if a lawyer enters the picture** and **advises police not to question** a defendant?

Answer 64

**Right to counsel is absolute** | Do not question individual whether in custody or not

Question 65

What is the right to counsel rules regarding **pre-arraignment line-ups** for identification purposes?

Answer 65

1. There is **no absolute right to counsel** 2. If **suspect says he wants his lawyer** present, **must make attempts to notify** lawyer and give him **reasonable time to appear**. **Same if defendant lawyer is known** to police 3. **If lawyer shows up, he is an observer**, but you may accept suggestions from him. ## Footnote While their is no absolute right to counsel the MFP seems to take the position that the defendant has a right to counsel at the line-up

Question 66

What is the right to counsel rules regarding show-ups?

Answer 66

* There is **no right to counsel at a show-up**. * Remember that **show-ups on the street are OK if emergency**, or **close in time** and **close in area**. **DO NOT**: * **Wait 2-1/2 hours for show-up** as was done when mailman was told he was going to see a show-up to make a positive ID. * Have show-up at the Station House **unless line-up can't be done**.

Question 67

What is the right to counsel rules regarding line-ups **after an accusatory instrument has been filed**?

Answer 67

* **Right to counsel is absolute** at the line-up. * If incarcerated defendant is removed by a Court Order for a line-up, he has a right to counsel at line-up * Only he can waive that right not his lawyer ## Footnote Ex. A person serving time in prison who is brought to a line-up by way of a TAKE-OUT ORDER has a qualified right to counsel at the line-up and **his lawyer can't waive that right.**

Question 68

What is the limited right to counsel following a D.W.I. arrest?

Answer 68

* There is **no absolute right to refuse to take a DWI chemical test until an attorney is actually consulted,** nor can a defendant use a request for legal consultation to significantly postpone testing * However there is a limited right to counsel to **allow the defendant** the opportunity to **consult with counsel** about **whether to submit** to the chemical breath test when the defendant requests to speak to her attorney or when an attorney contacts the police before a chemical test for alcohol is performed * Requires police to **notify the defendant of attorney appearance before a chemical breath test** whether the attorney comes into the picture in person or contacts by phone