Criminal Procedure Flashcards
What rules come from the fourth amendment?
- Protection against unreasonable search and seizure
- The Warrant Requirement which mandates probable cause
- Subsequently, exceptions to the warrant requirement
Does the fourth amendment apply to all interactions with people?
No, it does not apply to all interactions between people, or even between a person and the government
- the 4th amendment only limits government authority. If a private person violates your privacy and turns over evidence to the police, then you have no claim under the 4th
- If that person is asked by police to do this however, they become a government agent for this purpose
What does the fourth amendment protect against?
searches and seizures
What is the Katz Test?
- The Fourth Amendment Protects Individuals where:
- They display a subjective expectation of privacy
- That society is prepared to recognize as reasonable
What did Katz v United States do?
Katz apparently left behind the long standing property centric analysis for the Fourth Amendment, and expanded substantially the types of protections people were afforded against government intrusion.
What is a reasonable expectation of privacy in relation to technology?
- When police use technology “not in general public use” to gain information that would have been otherwise unknowable, this constitutes a search that typically requires a warrant
- Ex: Police may use a flashlight to search a stopped car, but can’t use thermal imaging to read the heat inside a house (Kyllo v. United States).
What is a reasonable expectation of privacy in relation to location?
- Less privacy expected in commercial buildings than private dwellings
- Overnight guests in another’s home have a reasonable expectation of privacy therein (Minnesota v Olson, 1990)
- But short term guests/commercial visitors do not (Minnesota v. Carter, 1998)
What is a reasonable expectation of privacy in relation to intrusiveness?
The more the police intrude in a space, or the more thoroughly they look, the more likely it is to qualify as a search that needs a warrant
What does standard of proof mean?
the level of certainty that is needed for the government to take action.
What are some standards of proof?
- 100% Certainty
- Beyond a Reasonable Doubt
- Preponderance of The Evidence
- Probable Cause
- Reasonable Suspicion
- Guessing
What is the “Beyond a Reasonable Doubt” standard of proof?
- the most well known is beyond a reasonable doubt (BRD) which is the standard of proof required for criminal conviction.
- Although there is not a strict definition of what this means, it has been characterized as “near certainty”
What is the “Preponderance of The Evidence” standard of proof?
Preponderance of The Evidence means “more likely than not” and is used to determine outcomes in civil trials.
What is the “Reasonable suspicion” standard of proof?
Reasonable suspicion is on the low end, and require more than a “hunch” but instead some articulable basis of suspicion based on facts and reasonable inferences. RS is needed for police to conduct frisks and stops
What is Probable Cause?
- Probable Cause is required both for warrants, and for searches without warrants
- It is something less than a preponderance of evidence, but more than mere suspicion
- Probable cause means that based on “trustworthy facts”, the officers experience, and reasonable inferences, a “person of reasonable caution” would be justified in believing that is probable
- that a structure contains evidence of a crime, that a suspect committed a crime, or whatever else happens to be relevant
What can probable cause be supported by?
Probable cause can be supported by evidence that is normally inadmissible, including hearsay.
- Probable cause may be established via an informant or tipster (a citizen who provides information to the police), IF
- A judge decides based on the totality of the circumstances that there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v Gates)
- Important factors include the basis of knowledge of the tipster, and the veracity of the tipster (past history of truthful behavior, or corroboration)
- Another key factor is to look for predictive information – something more than a description of the suspect, including usually something externally verifiable (the time of a meeting, for example) Florida v. JL
- Dog searches can also establish PC
What is a warrant?
A warrant is a legal writ, signed by a judge, giving police permission to search a location.
- The warrant requirement is intended to ensure that there is a neutral party between the police and the citizen in order to ensure objectivity in the balance between privacy and law enforcement.
What must police establish in order to obtain a warrant?
- PC to believe that within the area to be searched, the items sought will be found
- PC to believe that the items sought are connected to criminal activity
- The area to be searched and items to be seized must be described with particularity.
- How specific this has to be varies. Simply searching for “unauthorized contraband” is not enough
- A street address is normally a specific enough location, along with a unit # if apartment
- Greater specificity can be required where areas to be searched are sensitive, or will potentially expose confidential information
- This evidence must be supported by oath or affidavit
- Order must be signed b a neutral and detached magistrate – NOT someone who is ultimately going to prosecute the crime
Does a warrant to search a place give police rights to search its occupants?
In general, a warrant to search a place does not also give police rights to search its occupants.
- Individuals can be detained while searches take place, until the evidence is found or the threat of destruction of evidence has passed
What is the scope of warrants?
- Warrants can be highly tailored to fit particular circumstances. They can:
- Be issued to search and seize evidence of a crime, fruits of a crime, contraband, or items used to commit a crime
- Authorize searches/seizures of property owned by the suspect or by an innocent third party
- Be prospective: they can be issued to be executed when some triggering event happens
Can warrants limit areas to be searched?
Yes
When are warrants executed?
- Warrants must typically be executed during the day, within a specific amount of time after issuance, and usually require police to knock and announce their presence
- “No Knock” warrants can be issued in specific circumstances, but are controversial
What are the exceptions to the warrant requirement?
- Even if an officer has probable cause they must still get a warrant for a search, unless one of the following exceptions applies
- Consent
- Stop and Frisk (Terry v Ohio)
- Plain View / Plain Feel / Open Fields
- Searches of automobiles generally do not require warrants
- Preservation of Evidence
- Emergency Responses or Hot Pursuit
- Road Blocks / Random Stops
- Incident to Arrest
What is the “incident to arrest” warrant exception?
- If a lawful arrest is made, a person can be fully searched without a warrant and without PC
- Officers may also search the arrestee and the “area within his immediate control” to detect weapons and prevent the destruction of evidence. They may not search an entire home incident to arrest (Chimel v. California). Only the area where a defendant may obtain a weapon.
- A “protective sweep” of the home may be done to check for other persons who may be a danger to the officers (Maryland v Buie) if there is a reasonable belief that such individuals may be present
- Passengers of vehicles can be searched, as well as containers, if one occupant is arrested
What is an arrest?
-
Arrest is the most serious type of seizure that the state can carry out
- It is the official taking of a person to answer criminal charges
