FINAL Flashcards
1
Q
Seizures of property (3)
A
(1) seizure of property occurs if there is a meaningful interference with an individual’s possessory interest of that property
(2) receiving container with a tracking device is not a seizure of property (Karo)
(3) government intercepting a mail in the package and holding it for 10 days is seizure of property (Kelly)
2
Q
What constitutes seizure of person?
A
Arrest and Terry stops
3
Q
Seizure of person has not taken place unless… (2)
A
officer actually restrains suspect’s freedom of movement by
(1) exercise of physical force OR
(2) show of authority to which the person submits (Hodari)
4
Q
Seizure of person must be through means… (2)
A
intentionally applied, requiring
(1) volitional act on part of the officer AND
(2) objective circumstances indicating intent to seize (Torres)
5
Q
Whether there was non-physical seizure of person… (2)
A
whether under the circumstances, a reasonable person would have believed
(1) he is not free to leave OR
(2) terminate encounter on bus (Mendenhall + Bostick)
6
Q
SEARCH: Property based test
A
There is a search if government action amounts to physical intrusion into constitutionally protected area with the purpose of discovering evidence
7
Q
Canine sniff on curtilage without warrant
A
SEARCH (Jardines)
8
Q
Surveillance of home is a search if…
A
(1) government uses a device NOT in general public use to (2) explore details of home that (3) otherwise would be unknowable without physical intrusion (Kyllo)
9
Q
Attaching GPS to a car for 28 days
A
SEARCH
10
Q
SEARCH: Katz test
A
4A prohibits searches by government officer without warrant or PC when
(1) subjective expectation of privacy
(2) objectively reasonable that society wants to protect
11
Q
Katz factors (7)
A
1) nature of place/info being investigated
2) location or vantage point of police making observation
3) whether observation is by technology enhancement
4) social norms
5) known exposure or assumption of risk
6) language of 4A and CL history
7) law enforcement need vs. privacy
12
Q
Known exposure doctrine
A
Wired informant relaying back info to police is NOT a search because there is no reasonable expectation of privacy of things if someone has knowingly exposed to another (White)
13
Q
Third party doctrine
A
Person has no REP if he voluntarily disclosing info to 3P (private businesses) (Smith)
14
Q
Cell site information
A
Gov’s use of CSI to identify someone’s location IS a search because info is qualitatively different (3P doctrine n/a) (Carpenter)
15
Q
Beeper on object in car driving in public road
A
Gov’s attaching beeper on object in car is NOT a search because police are not infringing on anything D is trying to keep private and constitutes known exposure (Knotts)
16
Q
Drug sniff
A
Mere use of drug sniff of closed luggage or during lawful traffic stop is NOT a search (Place) (Caballes)
Exception: drug sniff on curtilage w/o warrant is search (Jardines)
17
Q
Open field
A
- private property that is not a house or close to house, unoccupied, undeveloped area outside of curtilage
- there is no expectation of privacy of open field (Oliver)
18
Q
Curtilage
A
- area immediately around the home so intimately tied to home that it is deemed extension of it and deserves protection
- Dunn factors: curtilage or open field?
(1) proximity of area to home
(2) whether area is included within enclosure surrounding home
(3) nature of uses area is put
(4) steps taken by resident to protect area from observation by people passing by
19
Q
Aerial searches
A
Aerial searches by police of person’s home or curtilage by low flying planes is NOT a search (Ciralo)(Riley) but look at the height or FAA regs
20
Q
Are common hallways of apt buildings curtilage or open field?
A
Open field
21
Q
Garbage
A
there is no REP of contents of garbage placed out in public place that is accessible to snooping by any member of the public with purpose of trash having taken by 3P
22
Q
What is probable cause and when is it required?
A
Probable cause is the substantive standard that defines quantum of suspicion police need for warrant for OR warrantless search/seizure
* Fair probability that under totality of circumstances person committed crime, place has items connected to crime, the thing is instrumentality of crime
23
Q
Probable cause for arrest of person
A
Fair probability that under the totality of circumstances the person committed the crime
- may be generalized to all car occupants despite no individualized suspicion to any one of them (Pringle); less than 50/50 odds are OK too
24
Q
Probable cause for search of place
A
Fair probability that under totality of circumstances that specific items connected with crime will be found in that location
25
Probable cause for thing to be seized
Fair probability that under totality of circumstances the thing is evidence of crime or instrumentality of crime
26
Warrants & probable cause
Articulable facts to assess probable cause and more than mere conclusory assertions that probable cause exists (Nathanson)
27
Affidavits & informants (probable cause)
Affidavit lacking sufficient detail to explain why (1) informant is reliable and (2) how he came to his conclusions does not provide necessary probable cause to obtain search warrant (Spinelli)
28
Positive alert drug sniff & probable cause
Positive alert by drug sniffing dog is insufficient for probable cause, must also show evidence of reliability of dog (Training, records, experience) AND
defendant must have opportunity to challenge evidence of dog's reliability via cross examination of testifying officer or introducing his own facts/expert W
29
Anonymous tips & probable cause
Bare anonymous tips are insufficient for probable cause unless corroborated; considering relevant factors such as tipster’s reliability/veracity and basis of knowledge in totality of circumstances.
30
What is an arrest and what does it require?
Arrests are seizures requiring probable cause
31
Arrests in public
Arrests in public do not require a warrant
32
Warrantless arrests must be followed by...
Warrantless arrests must be followed by Gerstein hearings - brought before a magistrate for probable cause determination within 48 hours of arrest and may not be required to remain in custody
33
Arrest in home requires...
(1) warrant based on probable cause as to the resident AND
(2) warrant must be executed at a time when it's reasonable to believe suspect will be home
(Payton)
34
Warrant is not required for arrest in home when (4)
(1) hot pursuit of fleeing suspect
(2) imminent destruction of evidence
(3) need to prevent suspect's escape
(4) risk of danger to police or others
35
Arrest in third party's home
Arrest warrant for suspect is insufficient to justify 3P's home to arrest that suspect, officer needs:
(1) arrest warrant to suspect based on probable cause AND
(2) search warrant to 3P's home based on probable cause there is legitimate object of search in home (suspect)
(Stegald)
36
Warrantless arrests & minor offenses
Warrantless arrests are allowed even for minor offenses that are punishable by a fine if the officer has probable cause - seriousness of offense is irrelevant (Atwater)
37
Warrant requirements
(1) supported by probable cause
(2) oath / affirmation
(3) particularity of place to be searched or person or thing to be seized: cannot be general / open-ended
(4) issued by neutral and detached magistrate
38
Manner of execution of warrant
(1) within scope of warrant in time frame
(2) within scope of warrant in place
* may search containers large enough to hold criminal evidence and seize object not described in warrant if probable cause to believe it's seizable item
(3) knock and announce, wait 15-20 secs before entering forcibly (Banks)
39
Knock & announce exception
officer has reasonable suspicion to believe that knocking an announcing would result in
(1) threat of physical violence
(2) facilitate suspect's escape
(3) lead to destruction of evidence
If knock & announce is violated, exclusionary rule does not prohibit admission of evidence discovered as a result (Hudson)
40
Searching a person in place open to public
Searching a place open to public, police need independent probable cause to search any particular person in that establishment (Ybarra)
41
Can officers seize persons inside/immediate vicinity during search of residence?
Yes, when searching a residence, officers may seize individuals inside or immediate vicinity of residence for duration of search (Summers).
42
When can police prevent suspect from reentering home?
It is reasonable for police to prevent suspect from reentering home if:
(1) probable cause to believe his home had drugs
(2) good reason to believe suspect would destroy drugs before police could return with warrant
(3) impose less restrictive restriction (no search/arrest)
(4) time period is not more than reasonably necessary to obtain warrant (McArthur)
43
Warrant exceptions (7)
1) exigent circumstances
2) search incident to search
3) cars
4) containers in cars
5) plain view doctrine
6) consent
7) inventory search
44
(1) Exigent circumstances
police reasonably believe:
(1) hot pursuit of suspect
(2) imminent destruction of evidence
(3) risk of danger to police or others
(4) someone needs aid under community care taking
45
Scope of warrantless exigency search
Duration and area is limited to exigency
example: destruction of evidence - limited to finding evidence that can be destroyed (Warden)
46
Warrantless entrance into residence based on exigency must consider....
Seriousness of offense (Welsh)
47
Can police create the exigency?
Yes but they cannot actually or threaten violation of 4A (King) cannot rely on false claim of legal authority
48
(2) SIA
The fact of arrest itself, without any more individualized suspicion, provides authority for police to conduct search of (1) person or the (2) immediately grabbable area, which is the area from within which the arrestee might gain possession of a weapon or destructible evidence
49
SIA & protective sweeps
SIA include automatic protective sweep of areas immediately adjoining place of arrest in the house when area from which an attack could be launched but if area further than that, need individualized suspicion (Buie)
50
SIA & passenger compartment
SIA includes passenger compartment of car if still accessible at time of search and if no longer accessible, police may search if reasonable to believe evidence of crime of arrest may be found there (Gant)
51
SIA & breathalyzer / blood test
Allowed as SIA (Birchfield) but blood tests not allowed as SIA (Knowles)
52
Search incident to citation
NOT ALLOWED! (Knowles) 😠
53
When can pretextual stops lead to arrests? (2)
Pretextual stops MAY lead to arrest on basis of
(1) objective motivations OR
(2) lawful basis (Whren)
54
Mistakes & stops/seizures
Mistakes in understanding a law or fact to make stops or search are lawful if reasonable (Heien) (Garrison)
55
(3) Cars
General probable cause that a car contains contraband or evidence of crime justifies search of any part of vehicle where the evidence may be found
56
Where can search of car occur?
Search of car need NOT happen at scene, officers may take car back to station and conduct warrantless search (Chambers)
57
Scope of car search
Limited to time & space - may only search part that probable cause justifies. Once police find the object of search, must stop unless there is added justification to continue
58
Car exception & motorhomes?
Car? apply factors like location, mobility, connected to utilities, public roads
59
(4) Containers in cars
Police with probable cause to search car may search belongings IN the car that can conceal object of search (Houghton)
Scope of searching containers is limited to the probable cause - more specific the probable cause, more limited the search
60
Containers OUTSIDE of cars
require warrant or warrant exception (Chadwick)
61
(5) Plain view doctrine
may seize evidence seeing in plain view if officer
(1) sees object from lawful vantage point
(2) legitimate right of access/reach object
(3) immediately apparent to officer that object is subject to legitimate seizure
62
(6) Consent (warrant & PC exception) (3)
(1) voluntary:
* false claim of legal authority to conduct search means the search was not voluntary (Bumper)
* whether reasonable person would feel to refuse request under totality of circumstances; factors:
- person's characteristics
- environment
- consenting party's actions/statements
(Bustamonte)
(2) consent obtained from someone officer reasonably believes person has ACTUAL or APPARENT authority to give consent:
* actual consent - person has common authority over property (Matlock)
* 3P consent - TAKE NO OVER YES - physically present co-occupant's stated refusal to consent to entry for warrantless search prevails when other physically present co-occupant grants permission (Randolph) BUT non-consent prevails only when non-consenting party is physically present in house (Fernandez)
* if police have probable cause to arrest the non-consenting suspect, remove him, and get consent
* apparent consent exists from perspective of objectively reasonable officer (Rodriguez)
(3) scope of search limited to scope granted from perspective of objectively reasonable officer
63
(7) Inventory searches
when someone is taken to custody and into station, inventory searches without PC or warrant are allowed
64
Terry stop requirements
officer must have reasonable suspicion that either
(1) suspect is armed and dangerous OR
(2) criminality is afoot
65
Terry frisk requirements
reasonable suspicion that suspect is armed and dangerous
always allowed when suspected crime is a crime of violence
66
Terry standard
Reasonable suspicion: less than PC but requires specific and articulable facts for making stop and frisk based on TOC - may also be based on mistake of law or fact if reasonable
67
Anonymous tips & reasonable suspicion
bare anonymous tips are insufficient for reasonable suspicion -- need corroboration
- something more than mere description of suspect is required (JL)
- but for reckless driving, police need not independently corroborate anonymous tip to stop the vehicle (Navarette)
68
High crime & reasonable suspicion
bare fact of high crime area is INSUFFICIENT for reasonable suspicion as to particular person in area
But high crime area + flight is SUFFICIENT for reasonable suspicion (Wardlow)
69
Scope of frisk & stop
limited to reasonable suspicion
70
Terry frisk limit
* terry frisk must end as soon as safety interests are dispelled
* if officer feels something during frisk and knows it's not a weapon, cannot go further unless he has immediate apparent cause to believe object is evidence of crime or weapon, then he can seize it based on plain touch doctrine
* without probable cause supporting plain touch doctrine, officer cannot seize item
* removing item from search is a search
* to go inside clothing during frisk officer needs PC, warrant, or warrant exception
* officer cannot manipulate item during frisk (Dickerson)
71
Terry to seizure
* moving person or object to another location (station for interrogation) when not rx necessary turns terry to seizure requiring probable cause (Royer)(Dunaway)
72
Is it 4A violation to arrest and convict someone for not telling officer name?
No, because based on reasonable suspicion and minimally intrusive inquiry but initial terry stop must be lawful and request to identify self must be related to the circumstances of stop (Hiibel)
73
What helps to determine if seizure or terry stop?
length of detention
74
Routine traffic/Terry stops extended
* cannot extend routine traffic stop to wait for drug sniffing dog to arrive (Rodriguez)
* but sometimes can extend the traffic stop by 20 mins if reasonably necessary (Sharpe)
75
Can officer order driver out of his car?
YES, when an officer legally stops a driver on the highway based on rx suspicion, he may order the driver out of the car without justification because it’s for police safety and minimal intrusion (Mimms)
76
Terry frisk of passenger compartment
ALLOWED during routine traffic stop if reasonable suspicion it contains weapon but frisk must be limited to where weapon could be hidden
77
Special needs exceptions (7)
Search or seizure is justified based on basic rx ground due to some investigatory need
1) community caretaking or emergency aid
2) administrative searches or inspections
3) commercial premises
4) school searches by administrators
5) DNA gathering of arrestee
6) sobriety checkpoints
7) drug checkpoints
78
1) Community care taking or emergency aid
objectively reasonable basis to believe a search or seizure is needed to provide immediate aid or to keep peace (bringham city) but not to retrieve firearms when person has left the home (Carniglia)
79
2) Administrative searches/inspections
require administrative warrant (non-arb justification) to inspect premises
80
3) Commercial premises
No warrant required
81
4) School searches by administrators
Requirements:
(1) reasonable grounds for suspecting the search will turn up evidence that student is violating law or school rules
(2) once search has been initiated, it cannot be excessively intrusive considering age and gender of student and nature of infraction
* purse search allowed after student caught smoking (TLO)
* search of underwear not allowed when goal to find advil, must be limited to reasonable scope of suspicion
82
5) DNA gathering of arrestee
cheek swab to gather DNA for broader stat program to identify arrestees is lawful and does not require individualized suspicion (King)
83
6) sobriety checkpoints
drunk driving checkpoints are OK (Stitz)
84
7) drug checkpoints
drug checkpoints to investigate crimes are not reasonable because no special need and purely investigatory (Edmond)
85
Excessive use of force
excessive use of force is permitted only to
1) prevent suspect's escape AND
2) officer has PC that suspect poses significant threat of death or danger to others/officers (Garner)
*** the inquiry of reasonableness in non-deadly excessive force must calculate that officers make split second judgments for evolving circumstances
86
Exclusionary rule
evidence seized by government actor in violation of someone's 4A rights cannot be used against them in criminal trial and excluded from evidence (Mapp)
87
Fourth Amendment Analysis (6)
0) Standing?
1) was there a 4A violation?
2) is the issue whether there was a search or seizure at all? REP or property test
3) if there is a search or seizure, is there probable cause? usually required unless exception applies
4) if there is a search or seizure AND probable cause, is there a warrant required?
5) if there is a warrant when required, knock and announce rule? scope of warrant?
6) does exclusionary rule apply?
88
Limits to exclusionary rule (3)
1) Standing
2) Good faith exception
3) Fruit of poisonous tree doctrine
89
(1) Standing
defendant cannot invoke ER to exclude evidence if they did not have interest in the 4A violation, I.e. standing for
1. search (REP violated?) OR
2. seizure (meaningful interference with possessory interest?)
ASSESS STANDING BASED ON TOC
90
Standing: car passengers in someone else's car?
NO! No REP of the car
(Rakkas)
91
Standing: unauthorized driver of rental car?
YES! due to TOC, not mere K agreement
(Byrd)
92
Standing: overnight guest?
DEPENDS...
Usually, overnight guest in home has standing to challenge search of home (Olsen)
BUT not if merely present for:
- short term business purpose
- involved in illicit commercial activity
- no previous relationship (Carter)
93
Good faith exception
prevents exclusion of evidence when the officer violates 4A but does so by reasonable reliance on:
MISTAKE that is....
1) negligent/wholly inadvertent, 2) non-reoccurring, 3) attenuated by 4A violation (herring)
SEEMINGLY VALID....
1) search warrant from neutral magistrate although not justified by PC (Leon)
2) statute later ruled unconstitutional (Krull)
3) arrest warrant from outdated database (Evans)
4) legal precedent authorizing police action taken but later overruled (Davis)
94
Fruit of the poisonous tree doctrine and exceptions
evidence discovered as a result of FOPT is 4A violation and subject to exclusionary rule, but requires both (1) cause in fact AND (2) proximate causation
Exceptions- cause in fact/prox. cause missing:
1) inevitable discovery
2) independent source
3) attenuation
95
When is cause in fact lacking?
1) independent source of evidence obtained
2) evidence found would have been inevitably discovered
96
When is proximate cause lacking?
when illegality is cause in fact of evidence but such distant cause of finding such evidence, attenuation applies and not FOPT
97
Inevitable discovery
evidence illegally discovered would have been inevitably discovered apart from illegality is not FOPT because illegality is not cause in fact of discovery (Hudson)
98
Independent source
evidence illegally discovered that also has independent source is not FOPT and not cause in fact because was also discovered by lawful means (Murray)
99
Attenuation
evidence is not FOPT if its discovery is sufficiently attenuated from the illegality at issue
factors indicating attenuation:
1) geographical distance
2) temporal distance
3) someone's volition or intervening act/circumstances
4) flagrancy of conduct
(Strieff)
*** courts are more likely to find attenuation when verbal testimony at issue than physical evidence because they include some amount of voluntariness breaking causal chain
100
Confessions must be FREELY & VOLUNTARILY in TOC; factors determining voluntariness (4)
1) atmosphere of coercion
2) nature of interrogation
3) violence or threats of violence
4) temporal length of questioning
101
Miranda doctrine
* prophylactic rule to prevent self-incrimination
Government cannot use statements from a suspect from a CUSTODIAL INTERROGATION UNLESS shows:
1) before questioning received adequate warnings of rights
2) person waived those rights knowingly and intelligently
102
Miranda warnings
prior to any questioning while in custody, person must be:
1) warned that he has a right to remain silent
2) any statement he makes can/will be used as evidence against him in court of law
3) he has right to presence of attorney
4) if he cannot afford attorney, one will be appointed to him by the court
103
What falls outside scope of Miranda?
Booking questions
104
Custody?
* CUSTODY: formal arrest no matter how minor offense (McCarty)
* OBJECTIVE TOC:
1) who initiated contact?
2) what is the environment?
3) age?
4) officer has done FUNCTIONAL EQUIVALENT of arrest based on reasonable suspect's POV (not officer's)? (McCarty)
* NO CUSTODY:
1) routine traffic stops or less
2) voluntarily went to station
105
Interrogation?
* INTERROGATION:
1) direct questioning OR
2) FUNCTIONAL EQUIVALENT: officer's words or actions reasonably likely to elicit incriminating responses based on reasonable suspect's POV
*** dicta: officer's intent may be indirectly relevant
* NO INTERROGATION:
1) suspect communicating with undercover officer (Perkins) but if statement is made involuntarily by undue coercion or threat of violence then excluded (Fulmamonte)
106
How can suspect WAIVE his Miranda rights?
1) express OR
2) implied: suspect informed of Miranda warning, indicates knowing and intelligent understanding of rights, and freely engages in course of conduct indicating waiver (Butler)
* ultimate willingness to respond to questions after silence is enough to indicate waiver so long as there has not been invocation of rights
* suspect need only be made aware of rights, not of 3P hired a lawyer for him or police are going to question him about a different crime
107
How can suspect INVOKE his Miranda rights?
Must be unambiguous or express statement; ambiguity = NO INVOCATION (Berghuis)
Until a CLEAR invocation of right occurs, police may continue to question suspect and repeatedly request waiver (Thompkins)
108
Can Miranda rights be invoked post-waiver?
yes 🫡
109
Effect of invoking right to remain SILENT?
Later statements are admissible only if suspect's right to cut off questioning is scrupulously honored under the circumstances, factors:
1) original interrogation ceased immediately
2) passage of time
3) new warnings and waiver
4) suspect moved to different location
(Mosley)
110
Effect of invoking right to COUNSEL? (5A)
Questioning must stop UNLESS:
1) lawyer present (Edwards)
2) suspect voluntarily reinitiates conversation (Edwards)
3) >14 day break in custodial interrogation after released (Shatzer)
111
Miranda & FOPT
1) immediate incriminating statements after Miranda violation are EXCLUDED (Elstad)
2) subsequent post-Mirandized statements are excluded if officer engages in two-step ploy (Seibert)
3) 3P W testimony obtained by Miranda violation is NOT excluded (Tucker) and physical evidence obtained by Miranda violation is not excluded (paten)
112
When does 6A right to counsel attach?
Start of judicial proceeding:
* filing indictment
* arraignment in front of judge
* docket #
NOT enough for suspect to be arrested
113
Effect of 6A right of counsel attaching?
* Forbids police's deliberate elicitation of statements (Massiah)
114
Deliberate elicitation (6A)
* DELIBERATE ELICITATION occurs if there is purposeful or knowing action beyond mere listening that is designed to obtain incriminating statement from accused (Kuhlman)
* officer must have subjective purpose or awareness that what he is doing has the aim of getting an incriminating statement.
* Example: if suspect has no idea he is talking to government agent, then deliberately elicited
* if statement is deliberately elicited, statement and any additional fruits must be excluded BUT government MAY use the statements at impeachment of defendant at trial in government's case-in-chief. Miranda statements also can be used for impeachment
115
Limits of 6A right to counsel
1) offense-specific:
6A right to counsel applies ONLY when police interrogate the accused about CHARGED offense. Blockburger test says that it is the same offense if only one is lesser included of other. Manslaughter is same offense as murder because lesser included.
2) waiving right to counsel:
requires defendant to intentionally abandon known right (Brewer); can be effectuated by valid waiver of Miranda rights (patterson); BUT this doesn't apply if the accused doesn't know he's talking to a government agent.
3) invoking right to counsel: even if defendant invokes right to counsel at first hearing, police may pursue them to try to get waiver, but if in custody at that time, interrogation must STOP but they may voluntarily and knowingly waive Miranda rights.
