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Flashcards in Criminal Procedure Deck (143)
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What are the constitutional protections afforded under the 4th Amdt.?

1. Prohibition against unreasonable searches and seizures
2. Warrant shall not issue without probable cause

The 4th Amdt protects defendant from an unreasonable search by the government in all areas where D has a reasonable expectation of privacy. If he does not have a reasonable expectation, he cannot complain about the reasonableness of the search, no matter how reasonable. If he does have reasonable expectation of privacy, then we reach the merits.


What are the constitutional protections afforded under the 5th Amdt.?

1. Privilege against compulsory self-incrimination
2. Prohibition against double jeopardy


What are the constitutional protections afforded under the 6th Amdt.?

1. Right to speedy trial
2. Right to public trial
3. Right to trial by jury
4. Right to confront witnesses
5. Right to compulsory process for obtaining witnesses
6. Right of assistance of counsel in felony cases and misdemeanor cases in which imprisonment is imposed


What are the constitutional protections afforded under the 8th Amdt.?

Prohibition against cruel and unusual punishment.

Excessive bail


What types of government actions constitute a seizure of a person?

When, under the totality of the circumstances, a reasonable person would feel that he was not free to decline officer's requests or otherwise terminate the encounter (ex. arrest, seizure of persons by gov't)


What are the four global questions that comprise the inquiry in a search and seizure question?

1. Is the search or seizure governed by 4th Amdt?
2. If warrant, was the search and seizure with warrant conducted in conformity with the 4th Amdt.?
3. If no warrant, was the search and seizure without warrant conducted in conformity with the 4th Amdt.?
4. Even if search and seizure was unconstitutional, is evidence gathered nonetheless admissible?


What is the test for determining whether a search/seizure is governed by the 4th Amdt?

1. Was it executed by government agent?
2. Was it of an area/item protected by the 4th Amdt?
3. Did government agent either physically intrude into protected area to obtain item, or instead violate the individual's reasonable expectation of privacy?
4. Did the individual subjected to the search have standing to challenge the search?


Who are "government agents" for the purposes of determining whether a search/seizure is governed by the 4th Amdt.?

1. Usually uniformed police officers, either on or off duty.
2. Private security guards but only if they are deputized as officers of the public police.
3. Private citizens acting at directive of police
4. Public school administrators when acting within the scope of their duty (principal, vice principal)


What are areas/items protected by the 4th Amdt.?

1. Persons
2. Houses (including hotel rooms, including curtilage)
3. Papers, letters, personal correspondence
4. Personal effects (backpacks, purses, cars, belongings)



What are examples of objects held out to the public, where there is no reasonable expectation of privacy?

Mnemonic: Public Observation Generally Obliterates Fourth Amendment Protections
1. Physical characteristics (sound of voice, handwriting)
2. Odors that emanate from car or luggage
3. Garbage (left at curb for collection)
4. Open fields (areas outside curtilage, including barn)
5. Financial records held in a bank
6. Airspace (land visible from public place, even plane or helicopter).
7. Pen registers (devices that list the phone numbers someone has dialed)

Also, paint on the outside of one's vehicle.


How does one determine whether government agent physically intruded/violated expectation of privacy? (For purposes of determining whether 4th Amdt. applies)

Minority: trespass test - physical intrusion into constitutional area in order to obtain information
ex. GPS tracker on car (need a warrant)

Majority: privacy-based test - if agent's search/seizure of constitutionally protected area violates reasonable expectation of privacy. Requires both:
1. Actual (subjective) expectation of privacy over area searched/item seized AND
2. Privacy expectation is recognized by society as reasonable

Note: on second prong, use of sense-enhancing tech that isn't in public use to obtain info from inside suspect's home that otherwise couldn't be obtained without physical intrusion violates the legitimate expectation of privacy (ex. thermal imaging tech)


How does one determine whether an individual has standing to challenge conduct in court, such that the 4th Amdt. will apply to a search or seizure?

Must be the individual's own constitutional rights that have been infringed - their own property, not third party's rights. Must have reasonable expectation of privacy in area from which item was seized.

One may not raise a violation of another's constitutional rights at a suppression hearing.

Ex. own home, overnight guests in general areas of that place.
No standing if using premises solely for business, one-time use.
No standing re: passenger in car, no expectation of privacy.
No standing if you're validly arrested in your friend's house with arrest warrant, but the cops didn't get a search warrant for your friend's house! (Note, however, if he were an overnight guest, this does constitute privacy interest)


What is the test for determining whether a warrant was executed and conducted in conformity with the 4th Amdt.?

1. Was the warrant issued by a neutral and detached magistrate? (conduct must demonstrate bias in favor of prosecution, hard to reach)
2. Was the warrant supported by probable cause and particularity?
3. If not, did the police rely upon the defective warrant in good faith?
4. Was the warrant properly executed by the police?


What is the probable cause requirement for issuing a search warrant?

Warrant will only be issued if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officer lays out affidavit establishing the circumstances that enable determination of probable cause.

Probable cause - trustworthy facts, knowledge sufficient for a reasonable person to believe that suspect committed or is committing a crime for which the arrest is authorized by law

Hearsay may be basis of the probable cause.


Can informant tips be used to demonstrate probable cause in issuing a warrant?

Yes, if it meets the "totality of circumstances" test. Even if the affidavit doesn't establish the reliability/credibility of informant, may still be used. "Common sense/practical determination" must be met. This is a fluid and fact-specific test. Factors include: reliability, basis of knowledge, credibility (previously provided good tips, i.e.)

Don't need to reveal identity of the informant.


What is the particularity requirement for issuing a search warrant?

Must describe with reasonable precision the place to be searched and the items to be seized. If it doesn't, the warrant is unconstitutional, even if the affidavit includes detail.

The entire house - too broad.


What is the good faith exception to an otherwise constitutionally deficient search warrant?

Evidence obtained by police in reasonable reliance on a facially valid warrant may be used in prosecution, even if the warrant was not supported by probable cause. (If the police obtained a warrant and it was invalid.)


When will a search warrant be held invalid (based on the affidavit supporting it)

1. False statement by affiant (officer applying for warrant);
2. Affiant intentionally/recklessly included the false statement, AND
3. False statement was material to the finding of probable cause.


What are the exceptions to application of the "good faith" exception, when analyzing a constitutionally deficient search warrant?

1. If affidavit was so lacking in probable cause that no reasonable officer would have relied upon it
2. If warrant so lacking in particulars that officer could not reasonably presume it valid,
3. If affidavit that the magistrate relied upon included material knowing/reckless falsehoods that were necessary to finding of probable cause
4. If magistrate who issued the warrant is biased in favor of prosecution


May a warrant include searching a non-suspect third party?

Yes. As long as there is probable cause.


What is the test for determining whether police officers properly executed a warrant?

1. Compliance with the warrant's terms and limitations (though may detain within premises, just can't take them away; can't look for iPad in a wallet)
2. Compliance with "knock and announce" rule (knock, announce purpose, wait reasonable time for admittance)


When does a police officer need not comply with the "knock and announce rule" when executing a search warrant?

If the officer reasonably believes that doing so would be:
1. Futile
2. Dangerous, OR
3. Would inhibit the investigation.

And anyways, evidence collected post-failure to knock and announce can still be used.


What does a search warrant allow police to do w/r/t persons on the premises?

Can detain occupants during a search.
Cannot search persons found on premises who were not named in warrant.
Cannot follow, stop, detain, or search people who left premises shortly before warrant was executed.


What are the major exceptions to the requirement that searches and seizures be conducted pursuant to a warrant? (8)

ESCAPIST mnemonic.
1. Exigent circumstances (evanescent, hot pursuit, emergency aid)
2. Search incident to lawful arrest
3. Consent
4. Automobiles
5. Plain view
6. Inventory
7. Terry Stop and Frisk (lesser intrusion)
8. Special needs doctrine

1. Administrative inspections and searches
2. Searches in foreign countries and at the border


What are examples of exigent circumstances that allow an officer to conduct a search and seizure without a warrant?

1. Evanescent - may seize evidence likely to disappear before warrant can be obtained (yes to DNA under fingernails; no to drug levels in blood due to enhanced invasion)

2. Hot pursuit - police may even pursue into private dwelling (of suspect or third party - anything found in plain view is admissible)

3. Emergency aid - addressing emergencies that could affect health or safety (objectively reasonable test); injury need not be life threatening


What are the requirements imposed upon a search incident to arrest (such that officer is conducting search and seizure without warrant, falling into exception)?

1. Arrest must be lawful/constitutional (based on probable cause)
2. Timing (contemporaneous with arrest)
3. Geographic scope (wingspan, cell phones physically but not the data within, includes passenger cabin of car - even closed containers). You can search anything on the person, doesn't need to be subject to frisk requirements.

Automobile - it doesn't matter what the arrest is for. They can then search the area within the immediate control of driver (entire passenger area - unlocked glove compartment, back seat).

Once the arrested driver is under complete control (e.g. secured in the squad car), then they can ONLY search when they have reason to believe an item connected to the arrest is still in that automobile. In both situations, may search anywhere within the passenger compartment, but not the trunk.

To search the trunk, need another exception (automobile exception, consent, e.g.)

Police can also make protective sweep if they believe accomplices may be present.


What is the consent exception to the warrant requirement?

1. Must be voluntary (but no need to have knowledge of the right to withhold, and police have no duty to report that).

2. Limited in scope (but generally extends to all areas which reasonable person under circumstances would believe it extends; can say "don't go in my left pocket")

3. Person must have apparent authority to consent (apparent equal right to use or occupy the property; note here that if suspect grants consent but doesn't actually have it, OK as long as police reasonably believed person had consent!

4. Comports with shared premises rules (When adults share residence, any adult can consent anywhere within. However, cannot give valid consent when co-occupant is present and objects to search; however, if co-occupant objected and is removed, can act on the consent of the remaining occupant even if that person already voiced their objection)

Note: a parent who has access to the whole house can consent to the child's room

Note: 4 only applies to rooms within the house. W/r/t a locked chest within a room that is not the consentor's, then clearly shows that the exclusive right did not belong to consentor and that person did not have authority to consent.


What is the automobile exception to the warrant requirement?

Note: there can be cars involved in the other exceptions! Don't reflexively assume that if a car is mentioned, this exception is implicated.

Does not eliminate the need for probable cause.

Standard: if police have probable cause to believe that vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain an item for which they had probable cause to search.
* can search passenger belongings (not just driver)
* if probable cause based on container in vehicle, can only search the container.
* YOU can look ANYWHERE, including the trunk!

Probable cause need not exist at start of auto stop. It can be acquired at any time before initiating a search (after running the plates, i.e.)

IF warrantless search is valid, can tow the vehicle to station and search it later. If police believe the auto itself is contraband, can seize from public place without warrant.

Note: can look in anything that might contain evidence.


What is the plain view exception to the warrant requirement?

Police may make warrantless seizure when they:
1. Lawful access to the place from which item can be plainly seen
2. Lawful access to item itself
3. Criminality of item must be immediately apparent

If police are conducting a legitimate search for item X but come across another illegal item, they can always seize them whether or not they were searching for them.


What is the inventory exception to a warrant requirement?

At police station, police may make inventory search of arrestee's belongings, pursuant to police policy. May also make inventory search of an impounded vehicle. Provided:
1. Regulations governing inventory search reasonable in scope
2. Search itself complies with those regs
3. Search conducted in good faith (motivated solely by need to safeguard possessions and ensure officer safety - subjective)