Final Flashcards
(68 cards)
1
Q
Katz Test
A
- Did the person have a subjective expectation of privacy?
- Does society recognize that expectation as reasonable?
YES TO BOTH = SEARCH
2
Q
Seizure of individual
A
a person is seized if there is an application of physical force or a submission to a show of authority
3
Q
submission to authority
A
requires show of authority (force) & submission to that authority
4
Q
show of force
A
shooting, laying on of hands
5
Q
test for submission to authority
A
whether, under all the circumstances, a reasonable person would feel free to disregard the authority and continue on
6
Q
knowingly exposed
A
what you knowingly expose does not get 4th protection even if in home
7
Q
consequences of calling it a search
A
- need PC & a warrant before conducting it
- evidence taken in violation of 4th will be excluded
- police will be required to have warrant from neutral magistrate before conducting unless there is a warrant exception present
8
Q
4th and technology
A
where government uses a device not in general public use to explore details of the home that could not have been otherwise known without physical intrusion it is a search and presumptively unreasonable without a warrant
9
Q
curtilage
A
- land immediately surrounding and associated with the home
- police can observe activity on the curtilage from public street but police presence on curtilage is 4th activity
10
Q
curtilage factors
A
- proximity to home
- enclosed
- nature and use
- steps taken to protect it from observation
11
Q
GPS on a car
A
- requires search warrant
- treated as a physical trespass on legally recognized property interest
12
Q
dog sniff of luggage
A
- court approved sniffs of exterior of luggage in public place
- sniff was minimally intrusive
- disclosed only the presence or absence of narcotics thereby protecting innocent citizens from general police rummaging in their possessions
13
Q
tracking beepers
A
police cannot use to obtain information that could not have been obtained through visual surveillance
14
Q
staleness of PC
A
may be stale depending on the relationship between the length of time between discovery of the information and the time that a search warrant is sought
15
Q
particularity of things to be seized in warrant
A
- must be only as particular as the circumstances require
- description of narcotics or drugs is sufficiently specific
- reference to stolen property is likely too general
16
Q
knock & announce
A
- audbily knock or make their presence known at the door
- announce the ID of the executing officers
- announce the purpose of the officers
- delay for a period of time sufficient to permit occupants to reach and open the door
17
Q
delay before police may enter
A
- depends on size of home, destructibility of contraband
- generally a delay of 30 seconds is warranted
18
Q
violation of knock and announce without valid exception
A
renders the search warrant defective
19
Q
exceptions to knock & announce
A
- nonviolent entry by trick, i.e. law enforcement officer pretending to be hotel desk clerk
- exigency exception i.e. objective basis that emergency exists
- when adherence to the knock & announce would be futile
20
Q
what can be seized pursuant to search warrant
A
- items specified in search warrant as evidence of crime
- nondescribed items that are in plain view
21
Q
duration of search
A
once all of the objects particularly described and sought under a warrant have been found or the police leave, no further searches are permitted under the authority of that warrant
22
Q
search incident to arrest
A
scope of the search includes the person and the area w/in her immediate control
23
Q
arrest in public
A
police may arrest person in public place without a warrant provided they have PC to believe that the arrestee committed a felony or a misdemeanor
24
Q
arresting a suspect at home
A
- absent exigent circumstances police may not arrest a person at his home without a warrant
25
rationale of search incident to arrest
reasonable because arrestee might have
- weapon on her person
- incriminating evidence she might try to destroy
26
search incident to arrest - opening containers on the person
police may open the container and search it at that time or later
27
search incident to arrest - containers immediately associated with arrestee
police may seize a container i.e. purse that the person is holding and may search
28
search incident to arrest - containers w/in arrestee's immediate control
- police may seize container that an arrestee can reach & may search it contemporaneous w/ the arrest
- if police do not search container immediately they must obtain search warrant to open and search later
29
containers in cars
- if find container police can open if it would contain the item they are searching for
- if they have PC to search container they can search the car for the container and open it
30
when Miranda warnings are unnecessary
- questioning conducted by undercover police agents
- routine booking questions
- police questioning about a weapon under the public safety exception
- use of statements taken in violation of Miranda to impeach the D if she chooses to testify & the statement was not obtained in violation of due process
31
miranda custody
- Miranda does not require an officer to give Miranda warnings to everyone approached for info concerning a crime
- Miranda only applies to custodial interrogations
32
objective test to determine custody for Miranda
how a reasonable person in the suspect's shoes would have understood the situation
33
Miranda interrogation
- suspect need not be advised of her Miranda warnings as soon as she is arrested as long as she is advised prior to the commencement of interrogation
- volunteered statements are admissible even if the D is in custody when the statement was made and no Miranda warnings had been given
34
Miranda safeguards come into play when...
a person in custody is subjected to either express questioning or its functional equivalent
35
express questioning or functional equivalent
any words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response from the suspect
36
miranda waiver
- may be implied through oral statements and conduct
- need not be in writing
- must include proof that an arrestee understood the Miranda warnings and therefore a court may not rely on a presumption that such an understanding exists
- suspect may talk without attorney present provided valid waiver is obtained
37
re-interrogation after invocation of the right to counsel
if the suspect invokes his right to counsel the police cannot interrogate the suspect unless it is the suspect who re-initiates the contact, then waiver after re-warning
38
overnight guest and 4th
- generally has legitimate expectation of privacy in the house they are staying in
- visitor present w/ owners consent purely for commercial purpose for short period of time w/out previous connection to owner has no 4th protection
39
Terry stop and frisk
- requires reasonable suspicion
- articulable facts & circumstances that reasonably lead police to believe crime is afoot and or suspect is armed
- lower standard than PC
- allows short detention
40
probable cause
- facts and circumstances sufficient for a reasonable person to believe crime is more likely than not
- need trustworthy evidence that suspect committed the violation and the violation has been committed
41
probable cause needs to search needs
- trustworthy evidence that particular items searched for are connected to criminal activity & items are likely to be found in the location searched
42
reasonable suspicion
- officer must articulate a reasonable basis for suspicion that crime is afoot
- more than a hunch but less than PC
- standard is the totality of circumstances
- requires individualized suspicion
43
searches that do not require individualized suspicion
- road blocks for public safety or info gathering, not general crime detection
- drug testing with compelling non-prosecutorial public safety need
44
search of other persons on premises
- cannot search person unrelated to authorized scope of search
- must have PC particular to that person to search bystander or PC to believe she has items on her person named in the warrant OR
- must have RS for Terry frisk OR
- must have PC to arrest a bystander on premises & then police may conduct a search incident to arrest
45
protective sweep
with RS that dangerous persons are on premises these are permitted
46
car search incident to arrest
- entire passenger compartment & contents of containers may be searched when custodial made of occupant
- trunk not included only areas accessible without exiting car
- must have PC for the original arrest to do search incident to arrest
47
inventory searches of cars
- police can conduct warrantless searches of care legally impounded
- as long as it is standard inventory policy, closed containers in cars can even be searched
- no need for independent justification if initial seizure of property was valid and police officer acted in good faith in conducting the inventory search
48
consent searches
- police don't need a warrant of PC if they have consent
- waiver need only be voluntary, not required to be knowing
- cannot be product of duress, or coercion, express or implied
- police do not need to advise about the right to refuse
- person must have actual authority or reasonably appear to have authority to consent
49
third party consent
- co-inhabitants assume the risk that one of them may permit search of common areas
- look or control issues i.e. roommate cannot consent to search area she is forbidden in
50
consenting & objecting co-occupants
- rights of present & objecting occupant wins
51
owner's consent for guest
generally binding for non-paying guest, but guest may not consent to search of owner's property except for areas where guest has access rights
52
Terry frisk
- police may frisk if there is RS that suspect is armed
- if frisk provides PC to believe there is contraband or other evidence within the narrow weapons frisk officer may expand the search or seizure to the evidence
- reasonable belief that suspect has contraband or other evidence is not enough for the initial frisk
- uncorroborated or unreliable anonymous tip does not justify stop & frisk
53
vehicle checkpoints
- checkpoint specifically to detect narcotic violates 4th
| - checkpoint to obtain info from public upheld
54
border searches
- extends only to baggage & vehicle searches & personal searches that are not unduly intrusive
- both citizens & non-citizens have no 4th rights at border or functional equivalent
55
exception to exclusionary rule - independent source doctrine
evidence brought in if obtained from source independent of original illegality
56
exception to exclusionary rule - inevitable discovery
- evidence admitted if shown by preponderance of evidence that police would have discovered it anyway without acting unconstitutionally
57
exception to exclusionary rule - attenuation doctrine
- evidence obtained through constitutional violation where connection has been so attenuated as to purge the taint
58
exception to exclusionary rule - good faith
- exclusionary rule does not apply when police act in good faith reliance on existing statutory law or defective search warrant
59
impeaching testifying D
- D's statements obtained in violation of 5th or 6th can be used to impeach D is she testifies at trial
- coerced/involuntary confessions obtained in violation Due Process cannot be used for any purpose or to impeach D if she testifies
60
5th involuntary confession
- violates Due Process and cannot be used for any purpose
| - coercion must come from government
61
miranda rights triggered by
custody
| interrogation
62
miranda public safety exception
not required when police ask questions reasonably prompted by public safety
63
invocation or right to counsel and right to remain silent don't last forever...
must be reasserted after 14 days to be effective
64
Terry stop (seizure)
reasonable if police officer can point to specific articulable facts, that taken together with reasonable inferences would warrant a reasonable officer in believing the suspect is or is about to be engaged in a crime
65
Terry search
search is reasonable if the police officer can point to specific articulable facts that, that taken together with reasonable inferences would lead a reasonable officer to believe the person may be armed and presently dangerous
66
officer experience in reasonable suspicion
subjective intent of the officer does not matter as long as there are specific articulable facts that would give a reasonably trained officer reasonable suspicion
67
flight as factor for reasonable suspicion
- flight alone is insufficient since there are many innocent reasons to run
- flight + other conduct can be considered factors
68
elevating reasonable suspicion to probable cause
if in the course of the reasonable investigation the quantum of information is obtained that would lead a reasonable officer to believe that crime has been or is being committed
