Crim Pro Flashcards
(210 cards)
1
Q
A police officer may make a warrantless _____ arrest when she has _____.
A
felony
reasonable grounds to believe that a felony has been committed and that the person before her committed it
2
Q
What is the remedy for an unlawful arrest?
A
The government generally cannot use at trial evidence that was discovered during the arrest
3
Q
The __________ provides that people should be free in their persons from unreasonable searches and seizures.
A
Fourth Amendment
4
Q
If a defendant is convicted at a trial in which unlawfully obtained evidence was admitted, on appeal, the conviction will be upheld only if _____.
A
the government can prove beyond a reasonable doubt that the error was harmless
5
Q
T/F. A conviction can be upheld if the conviction would have resulted despite the improper evidence.
A
T
6
Q
When may police conduct a warrantless search incident to arrest?
A
After any constitutional arrest
7
Q
The Fourth Amendment prohibits unreasonable searches and seizures. Generally, for a search to be valid, it must be _____. However, _____ are an exception to the general rule - the police may conduct this search _____. It must be conducted _____.
A
pursuant to a warrant issued by a neutral and detached magistrate and based on probable cause to believe that seizable evidence or fruits of a crime will be found on the premises to be searched
searches incident to arrest
after any constitutional arrest (doesn’t matter if invalid under state law)
contemporaneously with the arrest
8
Q
T/F. The police may conduct a search incident to an arrest whenever they arrest a person, even if the arrest is invalid under state law.
A
T
as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause).
9
Q
T/F. it is not necessary that the police fear for their safety for a warrantless search to be conducted following an arrest.
A
T
Although the exception is based on safety concerns, the Supreme Court has held that it is not necessary that the police fear for their safety for a warrantless search to be conducted following an arrest. The search may be conducted incident to arrest in any case, as long as it is conducted contemporaneously with the arrest.
10
Q
Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. They may even _____, when _____.
A
pursue the suspect into private dwellings
when the police have probable cause and attempt to make a warrantless arrest in a “public place,” they may pursue the suspect into private dwellings.
11
Q
There are six exceptions to the warrant requirement; i.e., six circumstances where a warrantless search is reasonable and therefore is valid under the Fourth Amendment. These are:
A
b. “Automobile” Exception
If the police have probable cause to believe that a vehicle such as an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant. [Carroll v. United States, 267 U.S. 132 (1925)] Rationale: Automobiles and similar vehicles are mobile and so will not likely be available for search by the time an officer returns with a warrant. Moreover, the Supreme Court has declared that people have a lesser expectation of privacy in their vehicles than in their homes.
Note: Similarly, if the police have probable cause to believe that the car itself is contraband, it may be seized from a public place without a warrant. [Florida v. White, 526 U.S. 559 (1999)]
Example: On three occasions, the police observed Defendant selling cocaine from his car, giving the police probable cause to believe that Defendant’s car was used to transport cocaine. Under state law, a car used to transport cocaine is considered to be contraband subject to forfeiture. Several months later, the police arrested Defendant on unrelated drug charges while he was at work and seized his car from the parking lot without a warrant, based on their prior observations. While inventorying the contents of the car, the police found cocaine and brought the present drug charges against Defendant. The cocaine was admissible into evidence. Even though the police did not have probable cause to believe that the car contained cocaine when it was seized, they did have probable cause to believe that it was contraband and therefore seizable, and inventory searches of seized items are proper. [Florida v. White, supra]
1) Scope of Search
If the police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching. [United States v. Ross, 456 U.S. 798 (1982)] Thus, if the police have probable cause to believe that drugs are within the vehicle, they can search almost any container, but if they have probable cause to believe that an illegal alien is hiding inside the vehicle, they must limit their search to areas where a person could hide.
a) Passenger’s Belongings
The search is not limited to the driver’s belongings and may extend to packages belonging to a passenger. [Wyoming v. Houghten, 526 U.S. 295 (1999)—search of passenger’s purse upheld where officer noticed driver had syringe in his pocket] Rationale: Like a driver, a passenger has a reduced expectation of privacy in a car.
b) Limited Probable Cause—Containers Placed in Vehicle
If the police only have probable cause to search a container (recently) placed in a vehicle, they may search that container, but the search may not extend to other parts of the car. [California v. Acevedo, 500 U.S. 565 (1991)]
Example: Assume police have probable cause to believe that a briefcase that D is carrying contains illegal drugs. Unless they arrest D, they may not make a warrantless search of the briefcase because no exception to the warrant requirement applies. They follow D, and he places the briefcase in a car. They may then approach D and search the briefcase, even though they could not search it before it was placed in the car. They may not search the rest of the car, however, because D has not had an opportunity to move the drugs elsewhere in the car. Presumably, if some time passes and D has an opportunity to move the drugs, the police will have probable cause to search the entire car.
2) Motor Homes
The automobile exception extends to any vehicle that has the attributes of mobility and a lesser expectation of privacy similar to a car. For example, the Supreme Court has held that it extends to motor homes if they are not at a fixed site. [California v. Carney, 471 U.S. 386 (1985)]
3) Contemporaneousness Not Required
If the police are justified in making a warrantless search of a vehicle under this exception at the time of stopping, they may tow the vehicle to the station and search it later. [Chambers v. Maroney, 399 U.S. 42 (1970)]
Example: A vehicle search, based on probable cause, conducted three days after the vehicle was impounded is permissible. [United States v. Johns, 469 U.S. 478 (1985)]
f. Hot Pursuit, Evanescent Evidence, and Other Emergencies
1) Hot Pursuit Exception
Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search may be as broad as may reasonably be necessary to prevent the suspect from resisting or escaping. [Warden v. Hayden, 387 U.S. 294 (1967)] When the police have probable cause and attempt to make a warrantless arrest in a “public place,” they may pursue the suspect into private dwellings. [United States v. Santana, 427 U.S. 38 (1976)]
2) Evanescent Evidence Exception
The police may seize without a warrant evidence likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol [Schmerber v. California, 384 U.S. 757 (1966)] or fingernail scrapings [Cupp v. Murphy, 412 U.S. 291 (1973)].
3) Emergency Aid Exception
Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search. This includes situations where the police see someone injured or threatened with injury. [See, e.g., Brigham City v. Stuart, 547 U.S. 389 (2006)] Whether an emergency exists is determined objectively, from the officer’s point of view. [Michigan v. Fisher, 130 S. Ct. 546 (2010)] (Some states refer to this as the community caretaker exception.)
Examples: 1) Police responded to a domestic disturbance call at a home. Upon arriving, they found blood on the hood of a pickup truck and windows broken out of the home. They saw defendant through an open window, screaming and with a cut on his hand. An officer asked if medical attention was needed, and defendant told the officer to get a warrant. The officer then opened the house door part way, and defendant pointed a gun at the officer. Evidence of the gun need not be suppressed as the fruit of an unlawful entry. The officer could have objectively believed that the defendant could have attacked a spouse or child who needed aid or that defendant was in danger himself. [Michigan v. Fisher, supra]
2) A warrantless search may be justified to find contaminated food or drugs [see, e.g., North American Cold Storage v. City of Chicago, 211 U.S. 306 (1908)] or to discover the source of a fire while it is burning (but not after it is extinguished) [Michigan v. Tyler, 436 U.S. 499 (1978)].
Compare: The need to search a murder scene, without more, does not justify a warrantless search. [Mincey v. Arizona, 437 U.S. 385 (1978)]
12
Q
The scope of the search for a fleeing fellon may be _____.
A
as broad as may reasonably be necessary to prevent the suspect from resisting or escaping
13
Q
The police may seize without a warrant evidence likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol [Schmerber v. California, 384 U.S. 757 (1966)] or fingernail scrapings [Cupp v. Murphy, 412 U.S. 291 (1973)]. This is called the _____ exception.
A
Evanescent Evidence Exception
14
Q
Emergencies that threaten _____ will justify a warrantless search. This includes situations where the police _____. Whether an emergency exists is determined _____. [Michigan v. Fisher, 130 S. Ct. 546 (2010)] (Some states refer to this as the community caretaker exception.)
A
health or safety if not immediately acted upon
see someone injured or threatened with injury
objectively, from the officer’s point of view
15
Q
Police responded to a domestic disturbance call at a home. Upon arriving, they found blood on the hood of a pickup truck and windows broken out of the home. They saw defendant through an open window, screaming and with a cut on his hand. An officer asked if medical attention was needed, and defendant told the officer to get a warrant. The officer then opened the house door part way, and defendant pointed a gun at the officer. What result with respect to evidence of the gun?
A
Evidence of the gun need not be suppressed as the fruit of an unlawful entry. The officer could have objectively believed that the defendant could have attacked a spouse or child who needed aid or that defendant was in danger himself.
Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search. This includes situations where the police see someone injured or threatened with injury. [See, e.g., Brigham City v. Stuart, 547 U.S. 389 (2006)] Whether an emergency exists is determined objectively, from the officer’s point of view. [Michigan v. Fisher, 130 S. Ct. 546 (2010)] (Some states refer to this as the community caretaker exception.)
16
Q
T/F. A warrantless search may be justified to find contaminated food or drugs [see, e.g., North American Cold Storage v. City of Chicago, 211 U.S. 306 (1908)] or to discover the source of a fire while it is burning (but not after it is extinguished) [Michigan v. Tyler, 436 U.S. 499 (1978)].
A
T
17
Q
T/F. The need to search a murder scene, without more, justifies a warrantless search. [Mincey v. Arizona, 437 U.S. 385 (1978)]
A
F
does not justify
18
Q
An example of Evanescent Evidence is _____.
A
The police may seize without a warrant evidence likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol [Schmerber v. California, 384 U.S. 757 (1966)] or fingernail scrapings [Cupp v. Murphy, 412 U.S. 291 (1973)].
19
Q
The standard for determining whether probable cause to arrest exists may be articulated as follows:
The officer must have _____ of _____ sufficient to warrant _____.
A
knowledge
reasonably trustworthy facts and circumstances
a reasonably prudent person to believe that the suspect has committed or is committing a crime
20
Q
T/F. An officer needs personal knowledge for probable cause.
A
F.
The choices indicating that the officer must have personal knowledge of the facts is are incorrect; the officer can base the decision on reliable “tips” from others, on a police report, on a police radio broadcast, or the like.
21
Q
T/F. Probable cause requires an officer to know the facts, beyond a reasonable doubt.
A
F
The choices indicating that the officer must believe beyond reasonable doubt that the suspect is committing or has committed a crime are incorrect because the standard is too onerous; it is sufficient that a reasonable person would believe that a crime has been or was being committed.
22
Q
Under what circumstances can a police officer rely on a tip from an informer to establish reasonable suspicion sufficient for a Terry stop?
A
When the tip is accompanied by adequate indicia of reliability
23
Q
T/F. The following are all exceptions to the Fourth Amendment warrant requirement, allowing for warrantless searches in situations where quick action is needed:
Hot pursuit of a fleeing felon; emergencies that threaten health or safety; investigation of a murder scene
A
F
Hot pursuit of a fleeing felon; evanescent evidence; emergencies that threaten health or safety
24
Q
If police unlawfully stop a car filled with multiple occupants, and those occupants are all subsequently arrested and charged with crimes as a result of the stop, which of them has standing to raise the unlawful stop in an attempt to suppress admission of evidence found in the automobile?
A
Any occupant of the vehicle
25
May a police officer constitutionally stop an automobile for violation of a traffic law with the actual goal of investigating a crime for which the officer lacks reasonable suspicion to justify the stop?
Yes, as long as the officer has probable cause to believe that a traffic law has been broken.
26
What is a stop and frisk?
Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest. To make such a stop, police must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime. [Terry v. Ohio, 392 U.S. 1 (1968)] Note: If the police also have reasonable suspicion to believe that the detainee is armed and dangerous, they may also conduct a frisk (a limited search) to ensure that the detainee has no weapons.
27
Police have the authority to briefly detain a person for investigative purposes even if they lack _____ to arrest. (Stop and frisk). To make such a stop, police must have _____. [Terry v. Ohio, 392 U.S. 1 (1968)] Note: If the police also have _____, they may also conduct a _____ (a _____) to ensure that the _____ has _____.
a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime
reasonable suspicion to believe that the detainee is armed and dangerous
frisk
limited search
detainee
no weapons
28
The Court has not specifically defined “reasonable suspicion.” It requires something more than a _____ (e.g., _____ [Brown v. Texas, 443 U.S. 47 (1979)]), but full probable cause is not required. Whether the standard is met is judged under the _____. [United States v. Sokolow, 490 U.S. 1 (1989)]
vague suspicion
it is not enough that the detainee was in a crime-filled area
totality of the circumstances
29
T/F. Reasonable suspicion justifying a stop is present when a suspect flees after noticing the presence of the police.
F
Reasonable suspicion justifying a stop is present when: (i) a suspect who is standing on a corner in a high crime area (ii) flees after noticing the presence of the police. Neither factor standing alone is enough to justify a stop, but together they are sufficiently suspicious. [Illinois v. Wardlow, 528 U.S. 119 (2000)]
30
T/F. Police had reasonable suspicion—and therefore there was no Fourth Amendment violation—where they detained Defendant at an airport while dogs sniffed his bags for drugs based on the following facts known by the police: (i) Defendant paid for airline tickets in cash with small bills; (ii) Defendant traveled under a name that did not match the name for the phone number he gave; (iii) Defendant traveled to a drug source city (Miami) and stayed for only 48 hours, while his flight time was 20 hours; (iv) Defendant appeared nervous; and (v) Defendant refused to check his bags. [United States v. Sokolow, supra] Note: The fact that these suspicious circumstances are part of a drug courier profile used by the police neither helps nor hurts the totality of the circumstances inquiry.
T
31
T/F. Stopping a car is a seizure for Fourth Amendment purposes.
T
32
Stopping a car is a seizure for Fourth Amendment purposes. Thus, generally, police may not stop a car unless they have at least _____.
reasonable suspicion to believe that a law has been violated
However, in certain cases where special law enforcement needs are involved, the Court allows police to set up roadblocks to stop cars without individualized suspicion that the driver has violated some law.
33
Stopping a car is a seizure for Fourth Amendment purposes. Thus, generally, police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated. However, in certain cases where special law enforcement needs are involved, the Court allows police to set up roadblocks to stop cars without individualized suspicion that the driver has violated some law. To be valid, it appears that such roadblocks must:
(i) Stop cars on the basis of some neutral, articulable standard (e.g., every car or every third car); and
(ii) Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
Compare: The police may not set up roadblocks to check cars for illegal drugs. The nature of such a checkpoint is to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety. If suspicionless stops were allowed under these circumstances, all suspicionless seizures would be justified. [Indianapolis v. Edmond, supra]
34
T/F. The police may set up roadblocks to check cars for illegal drugs.
F
The nature of such a checkpoint is to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety. If suspicionless stops were allowed under these circumstances, all suspicionless seizures would be justified. [Indianapolis v. Edmond, supra]
35
An automobile stop constitutes a seizure not only of the automobile’s driver, but also _____.
any passengers as well
Rationale: Such a stop curtails the travel of the passengers as well the driver, and a reasonable passenger in a stopped vehicle would not feel free to leave the scene without police permission. [Brendlin v. California, 551 U.S. 249 (2007)]
36
Officer pulled Driver’s car over for, admittedly, no valid reason. Upon approaching Driver’s car and asking Driver for her license, Officer noticed that Passenger resembled a person wanted for parole violation. Officer confirmed his suspicion via radio and arrested Passenger. Upon searching Passenger, Officer discovered drug paraphernalia. What result?
Held: Passenger has standing to challenge the admissibility of the drug paraphernalia as the fruit of an unlawful seizure.
An automobile stop constitutes a seizure not only of the automobile’s driver, but also any passengers as well. Rationale: Such a stop curtails the travel of the passengers as well the driver, and a reasonable passenger in a stopped vehicle would not feel free to leave the scene without police permission. [Brendlin v. California, 551 U.S. 249 (2007)]
37
If the police set up a roadblock for purposes _____, the roadblock likely will be constitutional. An example would be _____.
other than to seek incriminating information about the drivers stopped
The police set up a roadblock to ask drivers if they had any information about a deadly hit and run that occurred a week earlier, approximately where the roadblock was set up. D was arrested at the roadblock for driving under the influence of alcohol after he nearly ran over one of the officers stationed at the roadblock. The Court held that the roadblock and arrest were constitutional. [Illinois v. Lidster, 540 U.S. 419 (2004)]
38
Provided that a police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may order _____. Moreover, if the officer _____ that the detainee _____, she may conduct a _____. She may also search the _____ to look for_____, even after _____.
the occupants (i.e., the vehicle’s driver and passengers) to get out
reasonably believes
is armed and dangerous
frisk of the detainee
passenger compartment of the vehicle
weapons
the driver and other occupants have been ordered out of the vehicle
39
T/F. If an officer has reasonable suspicion to believe that a traffic law has been violated, the officer may stop the suspect’s automobile, even if the officer’s ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop.
Probable cause
40
As long as the police do not _____, it does not violate the Fourth Amendment to allow a narcotics detection dog to sniff the car.
extend the valid stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop
41
If the police have _____ to believe that a vehicle such as an automobile contains _____, they may search the vehicle without a warrant.
probable cause
contraband or fruits, instrumentalities, or evidence of a crime
42
If the police have _____ to believe that the car itself is contraband, it may be seized from _____ without a warrant.
probable cause
a public place
On three occasions, the police observed Defendant selling cocaine from his car, giving the police probable cause to believe that Defendant’s car was used to transport cocaine. Under state law, a car used to transport cocaine is considered to be contraband subject to forfeiture. Several months later, the police arrested Defendant on unrelated drug charges while he was at work and seized his car from the parking lot without a warrant, based on their prior observations. While inventorying the contents of the car, the police found cocaine and brought the present drug charges against Defendant. The cocaine was admissible into evidence. Even though the police did not have probable cause to believe that the car contained cocaine when it was seized, they did have probable cause to believe that it was contraband and therefore seizable, and inventory searches of seized items are proper. [Florida v. White, supra]
43
If the police have full probable cause to search a vehicle, they can search _____. [United States v. Ross, 456 U.S. 798 (1982)] If they have probable cause to believe that an illegal alien is hiding inside the vehicle, they must _____.
The search is not limited to _____. However one limitation is that _____.
the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching
Thus, if the police have probable cause to believe that drugs are within the vehicle, they can search almost any container
limit their search to areas where a person could hide
the driver’s belongings and may extend to packages belonging to a passenger—search of passenger’s purse upheld where officer noticed driver had syringe in his pocket] Rationale: Like a driver, a passenger has a reduced expectation of privacy in a car.
If the police only have probable cause to search a container (recently) placed in a vehicle, they may search that container, but the search may not extend to other parts of the car.
44
Police stop a vehicle with PC. Search of passenger’s purse upheld where officer noticed driver had syringe in his pocket. Why?
1) Scope of Search
If the police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching. [United States v. Ross, 456 U.S. 798 (1982)] Thus, if the police have probable cause to believe that drugs are within the vehicle, they can search almost any container, but if they have probable cause to believe that an illegal alien is hiding inside the vehicle, they must limit their search to areas where a person could hide.
a) Passenger’s Belongings
The search is not limited to the driver’s belongings and may extend to packages belonging to a passenger. [Wyoming v. Houghten, 526 U.S. 295 (1999)—search of passenger’s purse upheld where officer noticed driver had syringe in his pocket] Rationale: Like a driver, a passenger has a reduced expectation of privacy in a car.
45
Assume police have probable cause to believe that a briefcase that D is carrying contains illegal drugs. Unless they _____, they may not make a warrantless search of the briefcase because no exception to the warrant requirement applies. They follow D, and he places the briefcase in a car. They may then approach D and search the briefcase, even though _____. They may not search the rest of the car, however, because _____. Presumably, if _____, the police will have probable cause to search the entire car.
arrest D
they could not search it before it was placed in the car
D has not had an opportunity to move the drugs elsewhere in the car
some time passes and D has an opportunity to move the drugs
NOTES:
1) Scope of Search
If the police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching. [United States v. Ross, 456 U.S. 798 (1982)] Thus, if the police have probable cause to believe that drugs are within the vehicle, they can search almost any container, but if they have probable cause to believe that an illegal alien is hiding inside the vehicle, they must limit their search to areas where a person could hide.
a) Passenger’s Belongings
The search is not limited to the driver’s belongings and may extend to packages belonging to a passenger. [Wyoming v. Houghten, 526 U.S. 295 (1999)—search of passenger’s purse upheld where officer noticed driver had syringe in his pocket] Rationale: Like a driver, a passenger has a reduced expectation of privacy in a car.
b) Limited Probable Cause—Containers Placed in Vehicle
If the police only have probable cause to search a container (recently) placed in a vehicle, they may search that container, but the search may not extend to other parts of the car. [California v. Acevedo, 500 U.S. 565 (1991)]
46
The automobile exception extends to any vehicle that has the attributes of mobility and a lesser expectation of privacy similar to a car. For example, the Supreme Court has held that it extends to _____.
motor homes if they are not at a fixed site
47
Under the automobile exception, if the police have probable cause to believe that a vehicle such as an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant. If the police are justified in making a warrantless search of a vehicle under this exception at the time of stopping, they may _____.
tow the vehicle to the station and search it later
48
T/F. A vehicle search, based on probable cause, conducted three days after the vehicle was impounded is permissible.
T
49
Under what circumstances is a police officer permitted to search the inside of a vehicle after arresting an occupant of the vehicle?
If the arrestee is not secured or the police officer has reason to believe that the vehicle harbors evidence related to the crime of arrest
50
The plain view exception to the warrant requirement applies only to situations where _____.
Situations where it is immediately apparent that the items are evidence, contraband, or fruits or instrumentalities of a crime
51
T/F. The pictures are not likely to be suppressed where:
An informer tells the police that he suspects an acquaintance is counterfeiting money in his garage, the police offer to pay the informer $500 to obtain evidence, and the informer breaks into the garage and takes pictures of the press.
F
52
T/F. The pictures are not likely to be suppressed where:
A private citizen breaks into his neighbor’s garage hoping to recover a lawnmower that the citizen loaned to the neighbor, discovers a printing press counterfeiting money, and calls the police; the police ask the citizen to go back to take pictures of the press and the citizen complies.
F
53
What standard must the police must meet in order to seize a person for investigatory purposes?
The police may not seize a person for investigatory purposes unless they have at least reasonable suspicion to investigate based on articulable facts
54
For Fourth Amendment purposes, a seizure of a person occurs:
Only if under the circumstances a reasonable person would believe he is not free to leave
55
T/F. A person does not have a reasonable expectation of privacy in premises if she owned the premises, but had never lived there.
F
56
T/F. A person does not have a reasonable expectation of privacy in premises if she came to the premises that were searched to buy drugs.
T
57
Although government-required drug testing constitutes a search, the Supreme Court has upheld such testing without a warrant, probable cause, or even individualized suspicion when _____.
justified by “special needs” beyond the general interest of law enforcement
Examples: 1) The government can require railroad employees who are involved in accidents to be tested for drugs after the accidents. [Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989)]
2) The government can require persons seeking Customs positions connected to drug interdiction to be tested for drugs. There is a special need for such testing because persons so employed will have ready access to large quantities of drugs. [National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)]
3) The government can require public school students who participate in any extracurricular activities to submit to random drug tests because of the special interest schools have in the safety of their students. [Board of Education v. Earls, supra]
Compare: 1) Special needs do not justify a warrantless and nonconsensual urinalysis test to determine whether a pregnant woman has been using cocaine, where the main purpose of the testing is to generate evidence that may be used by law enforcement personnel to coerce women into drug programs. [Ferguson v. Charleston, 532 U.S. 67 (2001)]
2) The government may not require candidates for state offices to certify that they have taken a drug test within 30 days prior to qualifying for nomination or election—there is no special need for such testing. [Chandler v. Miller, 520 U.S. 305 (1997)]
58
T/F. The government cannot require railroad employees who are involved in accidents to be tested for drugs after the accidents.
F
Although government-required drug testing constitutes a search, the Supreme Court has upheld such testing without a warrant, probable cause, or even individualized suspicion when justified by “special needs” beyond the general interest of law enforcement.
Examples: 1) The government can require railroad employees who are involved in accidents to be tested for drugs after the accidents. [Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989)]
59
T/F. The government can require persons seeking Customs positions connected to drug interdiction to be tested for drugs. There is a special need for such testing because persons so employed will have ready access to large quantities of drugs. [National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)]
T
Although government-required drug testing constitutes a search, the Supreme Court has upheld such testing without a warrant, probable cause, or even individualized suspicion when justified by “special needs” beyond the general interest of law enforcement.
60
Special needs do not justify a warrantless and nonconsensual urinalysis test to determine whether a pregnant woman has been using cocaine, where the main purpose of the testing is to _____.
generate evidence that may be used by law enforcement personnel to coerce women into drug programs
61
T/F. The government may not require candidates for state offices to certify that they have taken a drug test within 30 days prior to qualifying for nomination or election—there is no special need for such testing.
T
Although government-required drug testing constitutes a search, the Supreme Court has upheld such testing without a warrant, probable cause, or even individualized suspicion when justified by “special needs” beyond the general interest of law enforcement.
62
For the police to rely on consent to search a house, the consent must be given by:
Someone with actual or apparent authority to consent
63
Public school searches conducted on school grounds must offer _____.
at least a moderate chance of finding evidence of wrongdoing
64
T/F. Low altitude aerial photographing of a home using a telephoto lens is not likely to be considered a 4th Amendment search.
T
65
The Fourth Amendment prohibits unreasonable searches and seizures. The Supreme Court has held that only a person with _____ can challenge a search or seizure on Fourth Amendment grounds to bar the use of the fruits of the search as evidence at trial. An intrusion into a place or thing in which the defendant does not have a reasonable expectation of privacy is _____ a search for Fourth Amendment purposes.
a reasonable expectation of privacy in a place searched or an item seized
not considered
66
If a police officer makes a traffic stop as a pretext to investigate a some other crime for which the officer lacks probable cause the _____ will be valid if _____.
stop
the officer had probable cause to make the traffic stop
67
T/F. There is an exception to the warrant requirement for searches incident to arrest. While the exception is based in part on the safety of police officers, the arresting officer need not fear for his safety before conducting the search. In certain circumstances, the search may extend beyond the arrestee’s person.
The search after arrest is valid without a search warrant or other facts justifying when:
A police officer searches the interior of the arrestee’s car after he was stopped for driving without a license and placed within a squad car.
F.
A search of the interior of an automobile incident to arrest may be performed only if the arrestee is not secured or if the police have reasonable suspicion that the automobile harbors evidence of the crime for which the arrest was made. Under the facts here, neither of the qualifying circumstances is present. Therefore, the warrantless search exception for searches incident to arrest does not apply and the search was invalid under the Fourth Amendment.
68
A search of the interior of an automobile incident to arrest may be performed only if _____.
the arrestee is not secured or if the police have reasonable suspicion that the automobile harbors evidence of the crime for which the arrest was made.
69
A search incident to arrest can extend to areas within the arrestee’s reach. Moreover, even though the exception is for the protection of police officers, the officer need not _____.
have reason to believe that weapons, evidence, or contraband will be found in the area searched, as long as it is within the arrestee’s immediate reach
70
T/F. There is an exception to the warrant requirement for searches incident to arrest. While the exception is based in part on the safety of police officers, the arresting officer need not fear for his safety before conducting the search. In certain circumstances, the search may extend beyond the arrestee’s person.
The search after arrest is valid without a search warrant or other facts justifying when:A police officer arrests a person on domestic battery charges just outside his home, allows the person to reenter to get a pack of cigarettes, accompanies him, searches the drawer in which the person reached for the cigarettes, and finds a vial of crack cocaine.
T
The search within the arrestee’s reach at the time of arrest (also known as the arrestee’s wingspan or grab area) is valid. A search incident to arrest can extend to areas within the arrestee’s reach. Moreover, even though the exception is for the protection of police officers, the officer need not have reason to believe that weapons, evidence, or contraband will be found in the area searched, as long as it is within the arrestee’s immediate reach.
The search of the drawer also is valid. This is an application of the above rule that officers may search not only the arrestee’s person, but also his wingspan. An arrestee’s wingspan moves as the arrestee moves.
71
A search incident to arrest can include a protective sweep of the premises in which the person was arrested if the arresting officer has _____.
reason to believe that accomplices may be present
72
For traffic violations, if the suspect is not arrested, there can be no _____, even if _____.
search incident to arrest
state law gives the officer the option of arresting a suspect or issuing a citation
73
A nonconsensual automobile search conducted after the suspect was issued a citation for driving 43 m.p.h. in a 25 m.p.h. zone was illegal, and contraband found during the search was excluded from evidence because . . .
The police may conduct a search incident to arrest whenever they arrest a person, and this is true even if the arrest is invalid under state law, as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause). Although the rationale for the search is to protect the arresting officer and to preserve evidence, the police need not actually fear for their safety or believe that they will find evidence of a crime as long as the suspect is placed under arrest. [United States v. Robinson, 414 U.S. 218 (1973)]
a) Issuance of Traffic Citation—Insufficient Basis
For traffic violations, if the suspect is not arrested, there can be no search incident to arrest, even if state law gives the officer the option of arresting a suspect or issuing a citation. [Knowles v. Iowa, 525 U.S. 113 (1999)—a nonconsensual automobile search conducted after the suspect was issued a citation for driving 43 m.p.h. in a 25 m.p.h. zone was illegal, and contraband found during the search was excluded from evidence] Rationale: When a citation is issued, there is less of a threat to the officer’s safety than there is during an arrest, and the only evidence that needs to be preserved in such a case (e.g., evidence of the suspect’s speeding or other illegal conduct) has already been found.
74
After arresting the occupant of an automobile, the police may search the interior of the auto incident to the arrest if at the time of the search:
(i) The arrestee is unsecured and still may gain access to the interior of the vehicle; or
(ii) The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
75
A police officer stopped a vehicle for speeding. Upon approaching the vehicle, he smelled burnt marijuana and saw an envelope on the floor marked with the street name of a certain type of marijuana. He ordered the car’s four occupants out of the vehicle and arrested them for unlawful possession of marijuana. Having only one pair of handcuffs and no assistance, he could not secure the arrestees. He had them stand apart from each other and proceeded to search the vehicle. During the search, the officer discovered cocaine in a jacket in the vehicle. The search was a valid search incident to arrest either because _____.
an “unsecured” arrestee easily could have gained access to the vehicle, or because the officer could reasonably believe that the vehicle contained evidence of the drug charge on which he arrested the occupants.
76
The police arrested defendant for driving on a suspended license shortly after he stepped out of his car. Defendant was then handcuffed and placed in a squad car. The police then searched the passenger compartment of defendant’s car and found cocaine in a jacket in the car. The search here was an invalid search incident to arrest because _____.
Because defendant was handcuffed and locked in a squad car, he could not likely gain access to the interior of his car in order to destroy evidence or procure a weapon. Nor did the police have any reason to believe that the car contained any evidence relevant to the charge of driving on a suspended license.
77
T/F. A search incident to an arrest need not be contemporaneous in time and place with the arrest.
F.
MUST BE
NOTE: At least with regard to searches of automobiles, the term “contemporaneous” does not necessarily mean “simultaneous.” Thus, for example, if the police have reason to believe that an automobile from which a person was arrested contains evidence of the crime for which the arrest was made, they may search the interior of the automobile incident to arrest after the arrestee has been removed from the automobile and placed in a squad car; and this is so even if the arrestee was already outside of the automobile at the time he was arrested, as long as he was a recent occupant of the automobile. [See Thornton v. United States, 541 U.S. 615 (2004)]
78
T/F. The police may search an arrestee’s personal belongings before incarcerating him after a valid arrest. [Illinois v. Lafayette, 459 U.S. 986 (1983)] Similarly, the police may search an entire vehicle—including closed containers within the vehicle—that has been impounded.
T
79
What is the good faith exception to the exclusionary rule?
The exclusionary rule does not apply when the police arrest or search someone erroneously but in good faith, thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law. [United States v. Leon, 468 U.S. 897 (1984); Herring v. United States, 129 S. Ct. 695 (2009)] Rationale: One of the main purposes of the exclusionary rule is to deter improper police conduct, and this purpose cannot be served where police are acting in good faith.
a. Exceptions to Good Faith Reliance on Search Warrant
The Supreme Court has suggested four exceptions to the good faith defense for reliance on a defective search warrant. A police officer cannot rely on a defective search warrant in good faith if:
1) The affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it;
2) The warrant is defective on its face (e.g., it fails to state with particularity the place to be searched or the things to be seized);
3) The police officer or government official obtaining the warrant lied to or misled the magistrate; or
4) The magistrate has “wholly abandoned his judicial role.”
80
T/F. The exclusionary rule does not apply when the police arrest or search someone erroneously but in good faith.
T
81
Assume that an officer has reasonable suspicion to conduct a Terry stop. Under what circumstances may the officer also frisk the person he has stopped?
If the officer reasonably believes that the suspect is armed and dangerous
82
To be valid, a warrant must:
(i) Be issued by a neutral and detached magistrate;
(ii) Be based on probable cause established from facts submitted to the magistrate by a government agent upon oath or affirmation; and
(iii) Particularly describe the place to be searched and the items to be seized.
83
One of the requirements for a valid warrant is that it must be based on reasonable suspicion established from facts submitted to the magistrate by a government agent upon oath or affirmation
F
PC
84
Only the _____ may execute a warrant.
police (and not private citizens)
85
When executing a warrant in a home, the police may not be accompanied by _____.
a member of the media or any other third party unless the third party is there to aid in executing the warrant (e.g., to identify stolen property that might be found in the home).
86
The warrant should be executed without unreasonable delay because _____.
probable cause may disappear
87
Knock and announce rule:
Generally, an officer executing a search warrant must knock and announce her authority and purpose and await admittance for a reasonable time or be refused admittance before using force to enter the place to be searched.
a) Sufficiency of Delay
If the officers executing a warrant have a reasonable fear that evidence, such as cocaine, will be destroyed after they announce themselves, a limited 15-20 second delay before using force to enter the house is reasonable. [United States v. Banks, 540 U.S. 31 (2004)]
b) “No Knock” Entry Possible
No announcement need be made if the officer has reasonable suspicion, based on facts, that knocking and announcing would be dangerous or futile or that it would inhibit the investigation, e.g., because it would lead to the destruction of evidence. [Richards v. Wisconsin, 520 U.S. 385 (1997)] Whether a “no knock” entry is justified must be made on a case-by-case basis; a blanket exception for warrants involving drug investigations is impermissible. [Richards v. Wisconsin, supra] Note: The fact that property damage will result from a “no knock” entry does not require a different standard—reasonable suspicion is sufficient.
[United States v. Ramirez, 523 U.S. 65 (1998)]
88
Generally, an officer executing a search warrant must knock and announce her authority and purpose and await admittance for a reasonable time or be refused admittance before using force to enter the place to be searched.
a) Sufficiency of Delay
If the officers executing a warrant have a _____ that evidence, such as cocaine, will be destroyed after they announce themselves, a limited _____ delay before using force to enter the house is reasonable. [United States v. Banks, 540 U.S. 31 (2004)]
b) “No Knock” Entry Possible
No announcement need be made if the officer has _____ that knocking and announcing _____. Whether a “no knock” entry is justified must be made on _____; which means a _____ exception for warrants involving drug investigations is impermissible. [Richards v. Wisconsin, supra] Note: The fact that property damage will result from a “no knock” entry _____ require a different standard—reasonable suspicion is sufficient.
[United States v. Ramirez, 523 U.S. 65 (1998)]
reasonable fear
15-20 second
reasonable suspicion, based on facts,
would be dangerous or futile or that it would inhibit the investigation, e.g., because it would lead to the destruction of evidence. [Richards v. Wisconsin, 520 U.S. 385 (1997)]
a case-by-case basis
blanket
does not
89
The fact that property damage will result from a “no knock” entry does not require a different standard—_____ is sufficient.
[United States v. Ramirez, 523 U.S. 65 (1998)]
reasonable suspicion
90
The Supreme Court has held that the exclusionary rule will not be applied to cases where officers violate _____.
the knock and announce rule
91
What is the scope of a search performed pursuant to a warrant?
The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant.
92
When a search performed pursuant to a warrant, what may be seized?
When executing a warrant, the police generally may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
93
T/F. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.
T.
[Ybarra v. Illinois, 444 U.S. 85 (1979)] If the police have probable cause to arrest a person discovered on the premises to be searched, however, they may search her incident to the arrest.
94
A warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain _____.
occupants of the premises while a proper search is conducted
95
T/F. The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.
T
96
All warrantless arrests made inside an arrestee’s home are presumed _____.
Presumed invalid, but that presumption may be rebutted
97
T/F. An immigration officer may search a vehicle for illegal aliens without probable cause for the search at the border or its functional equivalent and while on roving patrols away from the border.
F
At the border or its functional equivalent only
98
T/F. The probable cause to arrest standard requires that a police officer have personal knowledge of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.
F
knowledge (doesn't have to be personal knowledge)
99
T/F. The warrant must be based on probable cause; particularly describe the place or person to be searched; contain a bond for damages in case the warrant was improvidently granted
F. No bond.
The warrant must be issued by a neutral magistrate; be based on probable cause; and particularly describe the place or person to be searched
100
T/F. Under the Fourth Amendment, probable cause to search an automobile allows the police to search the automobile and the belongings of occupants that can harbor items for which the officers have probable cause to search, but not the occupants themselves absent reasonable suspicion that they are armed and dangerous
F
Allows the police to search the automobile, all occupants, and their belongings that can harbor items for which the officers have probable cause to search
101
T/F. Under the Fourth Amendment, probable cause to search an automobile allows the police to search the automobile and its occupants, but not their belongings unless the police have probable cause to believe the item for which they are searching is in the belonging being searched
F
Allows the police to search the automobile, all occupants, and their belongings that can harbor items for which the officers have probable cause to search
102
Under the Fourth Amendment, probable cause to search an automobile allows the police to search _____.
the automobile, all occupants, and their belongings that can harbor items for which the officers have probable cause to search.
103
Under what circumstances is a police officer permitted to search the inside of a vehicle after arresting an occupant of the vehicle?
If the arrestee is not secured or the police officer has reason to believe that the vehicle harbors evidence related to the crime of arrest
104
The Supreme Court has held that one does have a reasonable expectation of privacy in _____ of one’s luggage. Interestingly, though, the Supreme Court has held that one does NOT have a privacy interest in the _____ of one’s luggage.
the feel
smell
the smell is held out to the public—so drug and bomb sniffing dogs can sniff away and this does not constitute a search.
105
To have a Fourth Amendment right, a person must have a legitimate expectation of privacy with respect to the place searched or the item seized.
It is not enough merely that someone has an expectation of privacy in the place searched or the item seized. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates his own reasonable expectations of privacy. [Rakas v. Illinois, 439 U.S. 128 (1978)] Whether a person has a legitimate expectation of privacy generally is based on the totality of the circumstances, considering factors such as ownership of the place searched and location of the item seized. [Rawlings v. Kentucky, 448 U.S. 98 (1980)] The Court has held that a person has a legitimate expectation of privacy any time:
In addition to not having a privacy interest in the smell of one’s luggage, the Supreme Court has held a person does not have a reasonable expectation of privacy in the following things held out to the public:
(i) She owned or had a right to possession of the place searched;
(ii) The place searched was in fact her home, whether or not she owned or had a right to possession of it; or
(iii) She was an overnight guest of the owner of the place searched [Minnesota v. Olson, 495 U.S. 91 (1990)].
________
(i) The sound of one’s voice;
(ii) The movement of one’s car on a public road (even if detection of movement requires use of a tracking device placed on the car);
(iii) Account records held by a bank;
(iv) One’s handwriting;
(v) The paint on the outside of one’s car; and
(vi) Magazines one offers for sale.
106
T/F. As long as the police have lawfully stopped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop, a dog sniff of the car does not implicate the Fourth Amendment.
T
107
What is the "Open Fields” Doctrine?
To have a Fourth Amendment right, a person must have a legitimate expectation of privacy with respect to the place searched or the item seized.
Under the “open fields” doctrine, areas outside the “curtilage” (dwelling house and outbuildings) are subject to police entry and search—these areas are “held out to the public” and are unprotected by the Fourth Amendment. (The Court will consider the building’s proximity to the dwelling, whether it is within the same enclosure—such as a fence—that surrounds the house, whether the building is used for activities of the home, and the steps taken by the resident to protect the building from the view of passersby.) [Oliver v. United States, 466 U.S. 170 (1984)] Even a building such as a barn may be considered to be outside the curtilage and therefore outside the protection of the Fourth Amendment. [United States v. Dunn, 480 U.S. 294 (1987)] In addition, the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. [California v. Greenwood, 486 U.S. 35 (1988)]
108
What is the 4th Amend expectation of privacy with respect to fly-overs and VIN numbers?
Fly-Overs
The police may, within the Fourth Amendment, fly over a field or yard to observe with the naked eye things therein. [California v. Ciraolo, 476 U.S. 207 (1986)] Even a low (400 feet) fly-over by a helicopter to view inside a partially covered greenhouse is permissible. [Florida v. Riley, 488 U.S. 445 (1989)—plurality decision based on flight being permissible under FAA regulations] The police may also take aerial photographs of a particular site. [Dow Chemical Co. v. United States, 476 U.S. 227 (1986)]
a) Compare—Technologically Enhanced Searches of Homes
The Supreme Court has held that because of the strong expectation of privacy within one’s home, obtaining by sense enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search, at least where the technology in question is not in general public use. [Kyllo v. United States, 533 U.S. 27 (2001)—use of thermal imager on defendant’s home from outside the curtilage to detect the presence of high intensity lamps commonly used to grow marijuana constitutes a search]
4) Vehicle Identification Numbers
A police officer may constitutionally reach into an automobile to move papers to observe the auto’s vehicle identification number. [New York v. Class, 475 U.S. 106 (1986)]
109
Under the plain view exception to the warrant requirement, what is required?
It must be immediately apparent that the item is evidence, contraband, or a fruit or instrumentality of a crime.
The police must be legitimately on the premises where the item is found.
The item must be evidence, contraband, or a fruit or instrumentality of a crime.
110
T/F. The exclusionary rule is a judge made rule providing that evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment generally may not be admitted into evidence.
T
111
T/F. Probable cause need not be based on personal observations, but the officer must reasonably believe that the suspect has committed or is committing a crime.
T
112
T/F. To conduct a frisk of a person stopped for investigative purposes without a warrant, the police must have reason to believe that the suspect is armed and dangerous or that the suspect is harboring evidence of a crime on his person
F
The police need only have reason to believe that the suspect is armed and dangerous.
A warrantless search is not justified by a belief that the suspect is harboring evidence of a crime on his person.
113
May a police officer ever stop an automobile for investigatory purposes without reasonable suspicion to investigate?
Yes, if she makes the stop on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles
114
If the police have probable cause to search an automobile, they __________ search the __________ belongings as well.
May; driver’s or passenger’s
115
T/F. A warrantless arrest may be made in a person’s home if the police have probable cause to believe that the arrestee committed a felony and may be found in the home.
F
116
T/F. All warrantless arrests in the arrestee’s home are presumed invalid, but the presumption may be rebutted.
T
117
If a police officer has an articulable reasonable suspicion of a person’s involvement in criminal activity, the officer may stop the person (a Terry stop). When making such a stop, the officer may also perform a pat down (i.e., frisk) of the suspect’s outer clothing __________.
to search for weapons, but only if the officer has reason to believe that the suspect is armed and dangerous
118
T/F. If a police officer has an articulable reasonable suspicion of a person’s involvement in criminal activity, the officer may stop the person (a Terry stop). When making such a stop, the officer may also perform a pat down (i.e., frisk) of the suspect’s outer clothing automatically, to discover weapons.
F
to search for weapons, but only if the officer has reason to believe that the suspect is armed and dangerous
119
T/F. If a police officer has an articulable reasonable suspicion of a person’s involvement in criminal activity, the officer may stop the person (a Terry stop). When making such a stop, the officer may also perform a pat down (i.e., frisk) of the suspect’s outer clothing for more than weapons if the officer has reason to believe that the suspect is concealing such items.
F
Generally the search is only for weapons. An officer may seize an item that does not feel like a weapon only if by its plain feel or smell the officer immediately recognizes it—without manipulation—as contraband.
120
During a Terry Stop, the search is generally only for weapons. An officer may seize an item that does not feel like a weapon only if _____.
by its plain feel or smell the officer immediately recognizes it—without manipulation—as contraband
121
The police may conduct a valid warrantless search if they have a voluntary consent to do so. Knowledge of the right to withhold consent, _____.
while a factor to be considered, is not a prerequisite to establishing a voluntary consent
122
T/F. An officer’s false announcement that she has a warrant negates the possibility of consent.
T
123
Authority to Consent
Any person with _____ may consent to a search, and any evidence found may be used against _____. The search is valid even if _____, as long as the police _____. [Illinois v. Rodriguez, 497 U.S. 177 (1990)]
a) Limitation—
The police may not act on consent from an occupant if _____.
b) Parents and Children
A parent generally has authority to consent to a search of a child’s room (even an _____), as long as _____.
Whether a child has authority to consent to a search of a parent’s house or hotel room is a question of whether it is ______.
an apparent equal right to use or occupy the property
the other owners or occupants
it turns out that the person consenting to the search did not actually have such right
reasonably believed that the person had authority to consent
a co-occupant is present and objects to the search and the search is directed against the co-occupant. [Georgia v. Randolph, 547 U.S. 103 (2006)]
adult child
the parent has access to the room, but, depending on the child’s age, might not have authority to consent to a search of locked containers within the child’s room
reasonable to believe that the child had such authority. [See United States v. Gutierrez-Hermosillo, 142 F.3d 1225 (10th Cir. 1998)—14-year-old had authority to allow police into father’s hotel room while father was present] Even a relatively young child probably has authority to consent to a search of the common areas of a home or her own room. [See, e.g., Lenz v. Winburn, 51 F.3d 1540 (11th Cir. 1995)—nine-year-old had authority to consent to entry into her home]
124
(Consent) The scope of the search is limited by the scope of _____. However, consent extends to ______.
the consent
all areas to which a reasonable person under the circumstances would believe it extends
125
T/F. Police stopped D for a traffic violation, told him that they suspected him of carrying drugs, and asked for permission to search the car. D consented. The officers found a bag containing cocaine. At trial, D argued that his consent did not extend to any closed container (the bag). What result?
The Supreme Court held that because D knew the police were searching for drugs and did not place any restriction on his consent, it was reasonable for the police to believe that the consent extended to all areas where drugs might be found. [Florida v. Jimeno, 500 U.S. 248 (1991)]
126
T/F. There is no expectation of privacy in one's handwriting.
T
127
In order to be considered “in custody” for Miranda purposes, a person must be:
Involuntarily detained
128
T/F. Miranda warnings must be given before questioning begins when a defendant is meeting with a psychiatrist for a state-ordered examination.
T
129
T/F. the following items of information are included in Miranda warnings:
The detainee has the right to remain silent; she has a right to counsel; she has the right to be informed of the charges against her
F
The detainee has the right to remain silent; anything she says can be used against her in court; she has the right to counsel
130
The exclusionary rule is a judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a defendant’s _____ Amendment rights.
Fourth, Fifth, or Sixth
131
T/F. The fruits derived from statements obtained in violation of Miranda may be admissible despite the exclusionary rule.
T
132
In recent cases, the Court has emphasized that in deciding whether to apply the exclusionary rule, lower courts must balance _____.
the rule’s purpose (i.e., deterrence of police misconduct) against its costs (i.e., the exclusion of probative evidence). Therefore, exclusion of tainted evidence, including fruit of the poisonous tree, is not automatic; whether exclusion is warranted in a given case depends on “the culpability of the police and the potential of the exclusion to deter wrongful police conduct.” [Herring v. United States, 555 U.S. 135 (2009)]
133
T/F. Exclusion of tainted evidence, including fruit of the poisonous tree, is not automatic.
T
In recent cases, the Court has emphasized that in deciding whether to apply the exclusionary rule, lower courts must balance the rule’s purpose (i.e., deterrence of police misconduct) against its costs (i.e., the exclusion of probative evidence). Therefore, exclusion of tainted evidence, including fruit of the poisonous tree, is not automatic; whether exclusion is warranted in a given case depends on “the culpability of the police and the potential of the exclusion to deter wrongful police conduct.” [Herring v. United States, 555 U.S. 135 (2009)]
134
Police illegally search a warehouse and discover marijuana, but do not seize it. The police later return to the warehouse with a valid warrant based on information totally unrelated to the illegal search. If police seize the marijuana pursuant to the warrant, the marijuana _____ admissible. [Murray v. United States, 487 U.S. 533 (1988)]
is
Evidence is admissible if the prosecution can show that it was obtained from a source independent of the original illegality.
135
The defendant was released on his own recognizance after an illegal arrest but later returned to the station to confess. Is the confession admissible?
This voluntary act of free will removed any taint from the confession. [Wong Sun v. United States, supra]
136
D was arrested without probable cause and brought to the police station. The police read D his Miranda warnings three times and permitted D to see two friends. After being at the station for six hours, D confessed. The confession _____ because _____.
must be excluded
it is the direct result of the unlawful arrest—if D had not been arrested illegally, he would not have been in custody and would not have confessed.
Compare: Police have probable cause to arrest D. They go to D’s home and improperly arrest him without a warrant, in violation of the Fourth Amendment. D confesses at home, and the police then take him to the station. D confesses again at the station. The home confession must be excluded from evidence because it is the fruit of the illegal arrest, but the station house confession is admissible because it is not a fruit of the unlawful arrest. Because the police had probable cause to arrest D, they did not gain anything from the unlawful arrest—they could have lawfully arrested D the moment he stepped outside of his home and then brought him to the station for his confession. Thus, the station house confession was not an exploitation of the police misconduct; i.e., it was not a fruit of the fact that D was arrested at home as opposed to somewhere else. [New York v. Harris, 495 U.S. 14 (1990)]
137
Police have probable cause to arrest D. They go to D’s home and improperly arrest him without a warrant, in violation of the Fourth Amendment. D confesses at home, and the police then take him to the station. D confesses again at the station. The home confession _____.
The station house confession _____.
must be excluded from evidence because it is the fruit of the illegal arrest
is admissible because it is not a fruit of the unlawful arrest. Because the police had probable cause to arrest D, they did not gain anything from the unlawful arrest—they could have lawfully arrested D the moment he stepped outside of his home and then brought him to the station for his confession. Thus, the station house confession was not an exploitation of the police misconduct; i.e., it was not a fruit of the fact that D was arrested at home as opposed to somewhere else. [New York v. Harris, 495 U.S. 14 (1990)]
138
T/F. Even if the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will not be admissible.
F
If the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible.
139
It is difficult for a defendant to have live witness testimony excluded as the fruit of illegal police conduct, because a more direct link between the unconstitutional police conduct and the testimony is required than for exclusion of other evidence. The factors a court must consider in determining whether a sufficiently direct link exists include _____.
the extent to which the witness is freely willing to testify and the extent to which excluding the witness’s testimony would deter future illegal conduct.
140
T/F. The defendant may not exclude the witness’s in-court identification on the ground that it is the fruit of an unlawful detention.
T
141
After receiving Miranda warnings, a detainee has several options:
do nothing, waive his Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.
142
If the detainee does not respond at all to Miranda warnings, the Court will _____.
not presume a waiver [see Fare v. Michael, 442 U.S. 707 (1979)], but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.
143
The detainee may waive his rights under Miranda. To be valid, the government must show by _____ that the waiver was _____. The Court will look to _____ in determining whether this standard was met. But it appears that if the government can show that the detainee received Miranda warnings and then ______, that is probably sufficient.
a preponderance of the evidence
knowing and voluntary
the totality of the circumstances
chose to answer questions
[See Berghuis v. Thompkins, supra—suspect scarcely said anything after receiving Miranda warnings, but was held to have voluntarily waived his right to remain silent when he responded “yes” to an incriminating question posed three hours into his interrogation]
144
Police deception of detainee's lawyer . . .
If the Miranda warnings are given, a voluntary confession will be admissible even if the police lie to the detainee’s lawyer about their intent to question the detainee or fail to inform the detainee that his lawyer is attempting to see him, as long as adversary judicial proceedings have not commenced.
145
At any time prior to or during interrogation, the detainee may indicate that he wishes to remain silent. Such an indication must be _____. If the detainee so indicates, all questioning ______ must stop.
The police may reinitiate questioning after the detainee has invoked the right to remain silent, as long as ______. This means, at the very least, that the police _____. The only case directly on point states that _____.
explicit, unambiguous, and unequivocal (e.g., the detainee’s failure to answer does not constitute an invocation of the right to remain silent). [Berghuis v. Thompkins, supra]
related to the particular crime
they “scrupulously honor” the detainee’s request
may not badger the detainee into talking and must wait a significant time before reinitiating questioning
In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning where: (i) the police immediately ceased questioning upon the detainee’s request and did not resume questioning for several hours; (ii) the detainee was rewarned of his rights; and (iii) questioning was limited to a crime that was not the subject of the earlier questioning. [Michigan v. Mosely, 423 U.S. 96 (1975)]
146
Unless waived, the Fifth Amendment right to counsel under Miranda arises whenever:
There is custodial interrogation by someone known to be a police officer
147
T/F. The Fifth Amendment right to counsel does not apply whenever testimonial evidence is sought by a government agent.
T
The Fifth Amendment right to counsel does not apply whenever testimonial evidence is sought by a government agent. The suspect must know that the questioning is by or on behalf of the police (because the intent is to offset the coercive nature of such questioning).
148
The Fifth Amendment right to counsel apply at trial (since the police do not interrogate people at trial). However, there is a _____ Amendment right to cousel at trial.
Sixth
149
Once a detainee has expressed an unequivocal desire for counsel, _____.
questioning must cease immediately and may not be resumed unless counsel is present
150
T/F. Once a detainee has expressed an unequivocal desire for counsel, it is enough for the police merely to halt the interrogation immediately but resume after counsel leaves.
F
it is NOT enough
Mere consultation with counsel prior to questioning does not satisfy the right to counsel; the police cannot resume questioning the detainee in the absence of counsel.
151
Under Miranda, if a detainee makes a request for counsel but the request is ambiguous, the police:
May continue questioning
152
T/F. For a waiver of Miranda rights to be valid, the waiver must be obtained after the potential charges are revealed to the detainee.
F
153
Miranda warnings need only be given prior to police interrogation if the suspect is:
In custody
154
A confession obtained in violation of the defendant’s Miranda rights, but otherwise _____, may be used to _____ However, a truly involuntary confession is _____.
voluntary
impeach the defendant’s testimony if he takes the stand at trial, even though such a confession is inadmissible in the state’s case in chief as evidence of guilt. [Harris v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S. 714 (1975)]
inadmissible for any purpose. [Mincey v. Arizona, 437 U.S. 385 (1978)]
155
The prosecutor may not use the defendant’s silence after receiving Miranda warnings to counter the defendant’s _____.
insanity defense
156
If the police obtain a confession from a detainee without giving him Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if _____. However, a subsequent valid confession may be admissible if _____.
the “question first, warn later” nature of the questioning was intentional (i.e., the facts make it seem like the police used this as a scheme to get around the Miranda requirements). [Missouri v. Seibert, 542 U.S. 600 (2004)]
the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent. [See Oregon v. Elstad, 470 U.S. 298 (1985)]
157
If the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was _____.
purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed. [See United States v. Patane, 542 U.S. 630 (2004)]
158
T/F. A prosecutor may not comment on a defendant’s silence after being arrested and receiving Miranda warnings. The warnings carry an implicit assurance that silence will carry no penalty.
T
159
The prosecutor can comment on the defendant’s failure to take the stand when the comment is _____.
in response to defense counsel’s assertion that the defendant was not allowed to explain his side of the story
160
T/F. The state may not fire a police officer [Garrity v. New Jersey, 385 U.S. 493 (1967)], take away state contracts [Lefkowitz v. Turley, 414 U.S. 70 (1973)], or prohibit a person from holding party office [Lefkowitz v. Cunningham, 431 U.S. 801 (1977)] for failure to cooperate with investigating authorities.
T
Penalties for Failure to Testify Prohibited
The state may not chill the exercise of the Fifth Amendment privilege against compelled self-incrimination by imposing penalties for the failure to testify or cooperate with authorities.
Example: The state may not fire a police officer [Garrity v. New Jersey, 385 U.S. 493 (1967)], take away state contracts [Lefkowitz v. Turley, 414 U.S. 70 (1973)], or prohibit a person from holding party office [Lefkowitz v. Cunningham, 431 U.S. 801 (1977)] for failure to cooperate with investigating authorities.
Compare: There was no Fifth Amendment violation where a prisoner was required to disclose all prior sexual activities, including activities that constitute uncharged criminal offenses, in order to gain entry into a sexual abuse treatment program, even though refusal resulted in transfer from a medium security facility to a maximum security facility and curtailment of visitation rights, prison work and earnings opportunities, and other prison privileges. [McKune v. Lile, 536 U.S. 24 (2002)]
161
T/F. Anyone in police custody and accused of a crime, no matter how minor a crime, must be given Miranda warnings prior to interrogation by the police.
T
162
T/F. The Fifth Amendment privilege against self-incrimination forbids admission of evidence based on a psychiatric interview of defendant who was not warned of his right to remain silent. The admission of such evidence may, however, constitute harmless error.
T
163
T/F. Admission of rape and murder by a probationer to his probation officer was not compelled or involuntary, despite the probationer’s obligation to periodically report and be “truthful in all matters.”
T
164
T/F. The Miranda requirements do not apply to a witness testifying before a grand jury, even if the witness is under the compulsion of a subpoena. Such a witness who has not been charged or indicted does not have the right to have counsel present during the questioning, but he may consult with an attorney outside the grand jury room.
T
165
A witness who gives false testimony before a grand jury may be convicted of perjury even though he was not given the Miranda warnings.
T
166
“Interrogation” refers not only to express questioning, but also to _____.
any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect
167
Miranda does not apply to spontaneous statements _____, although officers must give the warnings before _____.
not made in response to interrogation
| any follow-up questioning
168
T/F. Miranda does not apply to routine booking questions (e.g., name, address, age, etc.), even when the booking process is being taped and may be used as evidence.
T
169
Police comments about the danger a gun would present to handicapped children, which resulted in a robbery suspect’s leading them to a weapon, did not constitute interrogation when _____.
the officers were not aware that the suspect was peculiarly susceptible to an appeal to his conscience
170
T/F. Allowing a suspect’s wife to talk to the suspect in the presence of an officer who is taping the conversation with the spouses’ knowledge does not constitute interrogation.
T
171
T/F. When a second police agency continues to question a suspect at a point when the first police department terminates its questioning, the impact of an earlier denial of rights by the first department does not carry over into the questioning by the second agency.
F
it does carry over
172
T/F. A question at trial about the defendant’s silence during an interrogation, after he was given Miranda warnings, results in a mistrial.
F
173
If a defendant files a motion to suppress his confession claiming that he did not waive his Miranda rights, the government must show that the Miranda waiver was _____.
Voluntary and knowing
174
Police officers perform an unconstitutional search of a building, find contraband, do not seize it, and later return to the building with a valid warrant based on information totally unrelated to the unconstitutional search. If police seize the contraband pursuant to the warrant, the contraband is admissible under the _____ Doctrine.
Independent source doctrine
175
For Miranda purposes, the determination of whether a person is in custody is a(n): (objective, subjective, mixed test)
Objective test
176
Difference b/w Miranda right to counsel and Miranda right to remain silent.
If a detainee invokes his Miranda right to counsel, the police may NOT question him about an unrelated crime. This is different from the rule for when the detainee merely invokes his right to remain silent, in which instance the police may question about a different crime if they scrupulously honor the request.
177
T/F. All doubts about a request for counsel are construed in favor of the detainee.
F
It is not true that all doubts about a request for counsel are construed in favor of the detainee. A request for counsel must be unambiguous and specific.
178
T/F. A detainee cannot waive the right to counsel in the absence of counsel.
F
179
When does the Sixth Amendment right to counsel apply?
Whenever adversary judicial proceedings begin
180
T/F. If a detainee requests the presence of counsel at interrogation, under Miranda the police may _____.
continue to interrogate if the request is ambiguous
181
T/F. Following a request for the presence of counsel by a detainee, the prohibition against questioning the detainee ends immediately after he is released.
F
does not end
Instead, the prohibition lasts the entire time the detainee is in custody for interrogation, plus 14 more days after the detainee returns to his normal life. After that point, the detainee may be questioned about the same matter upon receiving a fresh set of Miranda warnings.
182
Following a request for the presence of counsel by a detainee, the prohibition against questioning the detainee does NOT end immediately after he is released. Instead, the prohibition lasts the entire time the detainee is in custody for interrogation, plus _____ more days after the detainee returns to his normal life. After that point, the detainee may be questioned about the same matter upon _____.
14
receiving a fresh set of Miranda warnings
183
The Sixth Amendment provides that in all criminal prosecutions, the defendant has a right to the assistance of counsel. The right protects defendants from having to face a complicated legal system without competent help. It applies at all _____ after _____.
critical stages of a criminal prosecution
formal proceedings have begun
184
Some constitutional rights applicable in criminal cases are offense specific (i.e., _____), and some are not offense specific (i.e., _____).
Defendant is arrested, taken into custody, and charged with murder. She invokes her right to counsel. Which Amendment prevents the police from interrogating Defendant about the murder or any other criminal charge?
when invoked, they apply only to the specific charge for which they were invoked
once invoked, they apply to all charges against the defendant and not just the charge for which they were invoked
Fifth
185
If a grand jury finds probable cause to prosecute, it will issue a/an __________.
true bill
186
What are the two prongs of a successful ineffective assistance of counsel claim?
Deficient performance by counsel and but for the deficient performance the result would have been different
187
A determination of whether the defendant’s right to a speedy trial has been violated will be made by an evaluation of the totality of the circumstances. The following factors should be considered:
(i) Length of the delay;
(ii) Reason for the delay;
(iii) Whether the defendant asserted his right; and
(iv) Prejudice to the defendant.
188
The _____ Amendment provides for a speedy trial.
6th
189
The right to a speedy trial does not attach until the _____.
defendant has been arrested or charged
190
T/F. Speedy trial delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the state and not to the defendant.
F
defendant; not the state.
191
A defendant has a constitutional right to representation of counsel at the following critical stages:
1. Post-indictment interrogation whether custodial or not;
2. Preliminary hearings to determine probable cause to prosecute;
3. Arraignment;
4. Post-charge lineups;
5. Guilty plea and sentencing;
6. Felony trials;
7. Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed;
8. Overnight recesses during trial;
9. Appeals as a matter of right; and
10. Appeals of guilty pleas and pleas of nolo contendere.
There also is a Fifth Amendment right to counsel at all custodial police interrogations.
192
T/F. A suspect does not have the right to counsel when the police take his fingerprints.
T
1. Post-indictment interrogation whether custodial or not;
2. Preliminary hearings to determine probable cause to prosecute;
3. Arraignment;
4. Post-charge lineups;
5. Guilty plea and sentencing;
6. Felony trials;
7. Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed;
8. Overnight recesses during trial;
9. Appeals as a matter of right; and
10. Appeals of guilty pleas and pleas of nolo contendere.
There also is a Fifth Amendment right to counsel at all custodial police interrogations.
193
A defendant has a right to counsel during all custodial interrogations under the _______ Amendment and at all critical stages of a prosecution after formal proceedings have begun under the _______ Amendment.
Fifth; Sixth
194
The Sixth Amendment right to counsel applies __________.
a. whenever a defendant gives a blood sample
b. only after adversary judicial proceedings have begun
c. whenever an informant is placed in the defendant’s cell
d. only at interrogations performed by one known to be a government agent
b
195
The __________ Amendment(s) right(s) to counsel may be waived by a knowing and voluntary waiver.
Fifth and Sixth
196
What is a charging grand jury responsible for determining?
Whether the government has probable cause to prosecute
197
If a defendant lacks a ____________ understanding of the charges, she is incompetent to stand trial.
Rational and factual
To be competent, a defendant must have a rational and factual understanding of the charges against her. Due process of law, as well as the state law of most jurisdictions, prohibits the trial of a defendant who is incompetent to stand trial. A defendant is incompetent to stand trial under the due process standard if, because of her present mental condition, she either lacks: (i) a rational as well as a factual understanding of the charges and proceedings; or (ii) sufficient present ability to consult with her lawyer with a reasonable degree of understanding.
198
A defendant has a _____ Amendment right to be released from detention if there is no probable cause to hold him. Thus, a defendant has a right to a determination of probable cause. A preliminary hearing is a hearing held after arrest but before trial to determine whether probable cause for detention exists. The hearing is an informal, ex parte, nonadversarial proceeding. This hearing is called a _____.
Fourth
GERSTEIN HEARING
199
If probable cause has already been determined (e.g., the arrest is pursuant to a grand jury indictment or an arrest warrant), a preliminary hearing _____.
If no probable cause determination has been made, a defendant has a right to a preliminary hearing to determine probable cause if _____. Thus, the right applies if the defendant is released only upon _____. It does not apply if the defendant is _____.
The hearing must be held within a reasonable time, and the Court has determined that _____ hours is presumptively reasonable.
There is _____ remedy for the defendant for the mere denial of this hearing, because an unlawful detention, without more, has no effect on the subsequent prosecution. However, _____.
need not be held
“significant pretrial constraints on the defendant’s liberty” exist
the posting of bail or if he is held in jail in lieu of bail
released merely upon the condition that he appear for trial
48
no real
if evidence is discovered as a result of the unlawful detention, it will be suppressed under the exclusionary rule
200
A defendant has a right to be released from pretrial detention unless there is __________.
Probable cause to detain him
201
T/F. Grand jury proceedings are conducted in secret; the defendant has no right to be present
T
202
The question of whether a defendant is competent to stand trial judges the defendant’s mental condition at the time:
Of trial
203
The remedy for violation of the constitutional right to speedy trial is:
Dismissal with prejudice
204
The Fifth Amendment protection against self-incrimination protects __________ evidence.
Testimonial
205
When may the privilege against self-incrimination be asserted? (civil, criminal, or both)
At both civil and criminal proceedings
206
T/F. Natural persons, corporations, and partnerships may assert the Fifth Amendment privilege against self-incrimination.
F
just natural persons
207
The privilege against self-incrimination is waived by a defendant when she takes the stand, but only to the extent _____.
that she is subject to cross-examination
208
The Fifth Amendment privilege protects testimonial or communicative evidence. For a communication to be considered testimonial, it must _____.
The Fifth Amendment privilege does not protect real or physical evidence, such as _____.
explicitly relate a factual assertion or disclose information
Thus, for example, the government may not compel a person to write down his bank account numbers because doing so would disclose information and thus be considered testimonial.
blood samples, handwriting exemplars, or voice samples
209
Among other things, the Fourteenth Amendment Due Process Clause protects against involuntary confessions. Which of the following is not true regarding this protection?
a. Whether a confession is voluntary depends on whether there was official compulsion.
b. Whether a confession is voluntary is judged by the totality of the circumstances.
c. Whether a conviction must be overturned is judged by the harmless error test.
d. Whether a confession is voluntary depends on whether the confession was prompted by a mental disease.
d
210
Jeopardy attaches in a jury trial when:
The jury is empaneled and sworn
