Crim Pro: Search and Seizure Flashcards Preview

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Flashcards in Crim Pro: Search and Seizure Deck (86)
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1

Overview

Fourth Amendment prohibits state actor from engaging in unreasonable search or seizure.

2

Search and Seizure reasonable if:

Authorized by:
1. valid warrant or
2. warrant exception and
3. execution in a reasonable manner.
Evidence obtained pursuant to unreasonable search or seizure may be suppressed.

3

Search and Seizure Analysis:

1. State Action?
2. Search (REP, physical intrusion) or Seizure (possessory interest; free to leave)?
3. Warrant (PC, particularity) or Warrant exception?
4. Execution (reasonable; knock and announce)?
5. Suppression?

4

Police (on or off duty) breaks into home to find pot. Is this state action?

Yes-- doesn't matter if cop is off duty

5

Police asks neighbor to break into home and turn over pot. Is this state action?

Yes-- asking someone to do something is turning that person into agent of police.

6

Neighbor breaks into home and turns pot over to police. is this state action?

No-- police had nothing to do with it.

7

What is a "search?"

1) Invasion of Reasonable Expectation of Privacy.
2) Physically intruded into constitutionally protected area to obtain information.
(protected areas: persons, houses, papers, and effects)

8

What is REP?

REP =
a. Subjective expectation +
b. Objectively reasonable (by society)
Likely no REP if information:
a. exposed to public
b. transferred to third party who turns over to police

9

Pot in attic seen by police through window from sidewalk. REP?

NO-- plain view

10

Pot growing in attic without windows detected by police thermal imager. REP?

Yes

11

Pot hidden in privacy fenced backyard, discovered by police climbing over. ("curtilage") REP?

Yes

12

Pot hidden in privacy fenced backyard, discovered by police helicopter. REP?

No

13

Pot hidden by trees deep inside farm field, discovered by police trespassing. ("open fields"). REP?

NO

14

Drug paraphernalia in trash on curb, opened by police. REP?

NO

15

Public location of car by visual surveillance. REP?

NO

16

Public location of car by attached GPS device. REP?

Yes

17

Email or letter to friend, intercepted. REP?

YES

18

Email or letter to friend, turned over by friend.REP?

NO

19

Financial records turned over by banker. REP?

NO.

20

Drug dog sniff (sreet, checkpoint, airport). REP?

NO

21

Drug dog sniff on porch. REP?

YES

22

What is "Seizure?"

a. Things: TEST - meaningful interference with possessory interest. Ex. detention, dispossession, destruction.
b. Persons: TEST - exercise of authority which restrains freedom of movement, under which reasonable person would not feel free to leave. Ex. terry stops, arrest.

23

Sidewalk conversation without restraining force or show of authority. Seizure?

NO-- can still walk away

24

Sidewalk conversation at insistence of police blocking way. Seizure?

Yes

25

Standing

TEST: Search or seizure may be challenged only the person was actually searched or seized.

26

Driver challenges stop of car.
Passenger challenges stop of car.
Who has standing?

Both do.

27

Driver or owner challenges car search.
Passenger challenges car search.
Who has standing?

Driver or owner has standing.
Passenger does Not

28

Driver challenges search of passenger purse.
Passenger challenges search of passenger purse.
Who has standing

Driver does NOT have standing.
Passenger HAS standing.

29

Overnight guest challenges search of guest area.
Afternoon guest challenges search of guest area.

Overnight guest HAS STANDING
Afternoon guest DOES NOT HAVE standing.

30

Warrant or Warrant Exception

A search or seizure must be authorized by
(1) valid warrant or
(2) warrant exception