Midterm

Question 1

Did the officer’s act constitute a search?

Answer 1

1. Common Law Trespassory Test
   Originally a search occurred only when there was a physical intrusion into one of the constitutionally protected areas (house, person, mail, personal belongings).
2. Expectation of Privacy Analysis
   After its decision in Katz v. United States the court added that a search also occurs when there is a subjective expectation of privacy and the expectation of privacy is one which that society is willing to recognize as reasonable even if no physical intrusion has occurred.

Question 2

Expectation of Privacy- Enhancements for Observation

Answer 2

Enhanced devices that allow observation of activities that could have been observed by the naked eye do not violate a reasonable expectation of privacy unless there are not in general public use

Question 3

Expectation of Privacy- Content Information v. Non-Content Information
.

Answer 3

There is no reasonable expectation in non-content information but there is a reasonable expectation of privacy in content information

Question 4

Expectation of Privacy- Technology and Networks

Answer 4

The Carpenter v. United States case established that the constant monitoring of cell phone pinging as well as other expectation of privacy issues (surveillance of home, new technology) would bypass the Third-Party Doctrine and held that cell phone pinging information was a violation of the expectation of privacy.

Question 5

Expectation of Privacy- Third Party Doctrine

Answer 5

An individual who disclosed information to a third party loses control over that information and assumes the risk that the information or property can be turned over to the police

Question 6

Was there probable cause supported by an individualized suspicion to perform a search or issue warrant?

Answer 6

Illinois v. Gates indicates that probable cause requires knowledge by the officer that there was a fair probability that contraband or evidence of a crime may be found in a particular place. Ybarra v. Illinois held that probable cause is an individualized suspicion, therefore, mere propinquity to a crime does not give rise to probable cause. But, Maryland v. Pringle held that in car suspects could have the same purpose.

Question 7

Did the confidential informant’s testimony provide the officer with the probable cause necessary to conduct the arrest or search?

Answer 7

When probable cause is based on information supplied by a confidential informant, the existence of sufficient probable cause is determined by the totality of the circumstances. The totality of the circumstances takes into account the reliability and veracity of the information (previous experience), the basis of knowledge of the informant (more than a mere rumor), corroboration from an officer (facts observed that confirmed C.I.’s prediction) and the interest of the C.I.

Question 8

Is the defendant able to challenge the confidential informant’s testimony?

Answer 8

Confidential informants have a privilege to keep anonymity in regard to their identity. However, if the defendant can prove that the affiant officer recklessly or intentionally made false statement that were necessary to establish a probable cause finding, then defendant may obtain a hearing to invalidate the warrant.

Question 9

Did the probable cause become stale?

Answer 9

Probable cause must exist at the time that the warrant is issued and at the time the warrant is served. When dealing with consumable goods, probable cause could become stale and invalid.

Question 10

Was the warrant properly issued?

Answer 10

A warrant must be issued by a detached magistrate who has knowledge on how to establish probable cause. A magistrate is detached as long as they are not part of the prosecution. The warrant must be supported by an affidavit establishing probable cause.

Question 11

Can a defective affidavit be cured?

Answer 11

A magistrate can consider a sworn oath by the affiant to cure the defective warrant.

Question 12

Was the warrant particular as to the items being searched or seized?

Answer 12

A warrant must state with particularity the place to be searched and the items to be seized. The particularity required for a search of items must not be based on loose, vague, or doubtful bases of fact. Although some lack of specificity is allowed when other descriptions in the warrant provide reasonable guidance as to the general items to be seized, when the government seeks large quantities of material more exacting particularity will be required by the court.

Question 13

Was the warrant particular as to the place being searched?

Answer 13

A warrant must state with particularity the place to be searched and the items to be seized. However, a mistake in location does not invalidate the warrant if the warrant is based on information obtained after a reasonably diligent investigation.

Question 14

Was the defendant’s arrest at a third party’s residence valid?

Answer 14

If an officer is conducting an arrest at third party home the officer must not only obtain an arrest warrant but also a search warrant based upon probable cause that the suspect is located in the third party’s home.

Question 15

Was the warrant properly executed?

Answer 15

Generally, the warrant should be executed within 10 days from issuance and in the daytime, unless there are some exigent circumstances. A reasonable mistake as to the premises being searched will not invalidate the subsequent search if the officer was able to reasonably identify the area being searched.

Question 16

Does the good-faith exception to the exclusionary rule apply?

Answer 16

In U.S. v. Leon the court held that evidence obtained by a police officer who reasonably relies on a warrant, even if it is invalid, will not be not inadmissible.

Question 17

Did the executing officer violate the knock and announce rule?

Answer 17

Generally, officers must allow enough time for the person to come to the door and comply with the warrant, except when there are exigent circumstances (endangering life of officers and destruction of evidence).

Question 18

Was the officer’s detention of the defendant while executing the warrant valid?

Answer 18

Police may detain occupant of home while they execute a warrant so long as the intrusion is incremental. But, cannot detain owner who is out on the street.

Question 19

Preferability For WArrants

Answer 19

Generally, the SCOTUS requires that a warrant based on probable cause before a search or arrest can be conducted.

Question 20

Was the warrantless arrest of the defendant valid?

Answer 20

A peace officer is permitted to arrest without a warrant if a felony or misdemeanor (no breach of peace required) is committed in the officer’s presence (firsthand experience through one of the officer’s physical senses OR if a felony is not committed in the presence of the officer but there is reasonable ground for making the arrest. Officer have 48 hours to review the probable cause to led to the arrest or release the suspect. Any further physical intrusion must be balanced using the Schmerber balancing test (case by case weighing society interest with individuals privacy interest)

Question 21

Was the warrantless entry into the defendant’s residence valid?

Answer 21

Warrantless entries by police into a residence are presumed illegal unless justified by consent or exigent circumstances (imminent danger to life or welfare, serious damage to property, imminent escape, hot pursuit of a suspected felon, destruction of evidence)

Question 22

Were the warrantless searches incident to arrest valid?

Of the person of the defendant?

Answer 22

The court in Robinson v. United States held that an officer performing a lawful arrest may search a person for weapons and for evidence of the crime for which the suspect has been arrested.

Question 23

Were the warrantless searches incident to arrest valid?

The arm span of the defendant?

Answer 23

The court in Chimel v. California held that an officer lawfully conducting an arrest of the person may also search the area within the immediate control of the arrestee (i.e. the area which he might obtain either a weapon or something that could be used as evidence against him). May not search a cell phone.

Question 24

Were the warrantless searches incident to arrest valid?

Plain view?

Answer 24

An officer who is lawfully present on the premises, may, by merely looking and not manipulating the scene, observe what is already exposed and not within the arrestee’s immediate control

Question 25

Were the warrantless searches incident to arrest valid?

Sweep of the premises?

Answer 25

An officer performing a lawful arrest could, without additional probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of the arrest. However, in order to search beyond there must be articulable facts that would warrant a reasonable person in believing that the area harbor an individual posing a danger to those on the arrest scene.

Question 26

Were the warrantless searches incident to arrest valid?

Of the automobile?

Answer 26

A search incident to a lawful arrest of either the driver or any other occupant of the vehicle requires a custodial arrest (either by the use of physical restrains or by the arrestee’s submission to authority. Arizona v. Gant establishes that vehicle searches incident to arrest are lawful if either (1) the arrestee could gain access to the passenger compartment of the vehicle or (2) it would be reasonable to believe that evidence relevant to the arrest offense could be found in the vehicle.

The officer may only search containers found within the passenger compartment including passenger containers but may not search the body of a non-arrested passenger or the trunk without probable cause.

Question 27

Did the officer conduct a detention?

Answer 27

A detention exist when the officer asserts authority over a person in a way that reasonable person would feel compelled to submit to and the person submits to authority

Question 28

Was the Terry stop conducted by the officer valid?

Answer 28

If an officer observes a person engaging in conduct which would lead to a reasonable suspicion that a crime has occurred, is occurring, or will occur, the officer may temporarily detain (must be a limited encounter) an individual for the purpose of determining whether there is any corroborating evidence that crime has been committed, is occurring, or will occur. If detention takes longer than necessary or if there is movement in location, it becomes an arrest requiring probable cause. The reasonable suspicion is measured based on the totality of the circumstances.

Question 29

Did the confidential informant provide information that would give the officer reasonable suspicion to stop the defendant?

Answer 29

Reasonable suspicion is less that that probable cause, thus a confidential informant only needs to provide a moderate level of reliability including predictive information that offers the police a mean to test the informant’s knowledge or credibility (i.e. name)

Question 30

Was the warrantless search of the defendant while detained for investigation valid?

Answer 30

During the detention, if the officer has a reasonable suspicion that the person being detained may be armed and presently dangerous, the officer may pat down the outer clothing of the individual to look for weapons and pat down surrounding area.

Question 31

Was the warrantless search of the vehicle valid under the automobile exception?

Answer 31

California v. Acevedo established that a warrantless search of any part of a vehicle that is being used on public thoroughfare or that is readily capable of such use, is valid if the officer has probable causes to believe that the object the officer is looking for located in that portion of the vehicle. The officer may only search those areas and/or containers where he has probable cause to believe contraband or evidence is located.

Question 32

Did the defendant consent to the warrantless search?

Answer 32

If the defendant has authority over the area to be search or the items to be seized, he may consent to the search. The consent must be voluntary. Whether the consent was voluntary or coerced is measured using the totality of the circumstances taking into consideration whether the consenter knew his right, the extent to which police used force, whether police claimed to have authority, the particular characteristics of the individual.

Question 33

Could the third-party consent to the warrantless search of the defendant’s premises?

Answer 33

A person who shares authority (has joint access and control for most purposes) over an area may authorize search of the area, unless the other party is present and refused consent.

Question 34

Did the officer’s removal of the defendant by arresting him invalidate the consent?

Answer 34

If an officer moves the defendant, then the consent is not vitiated. If the defendant is moved by an arrest, he is not being moved because of the officer’s purpose but because of his own fault.

Question 35

Was the warrantless inventory search valid?

Answer 35

Searches that have an established set of standardized procedure and that are administered in good faith according those procedures will be admissible. Inventory searches are not meant to seek out evidence but to protect the property of the defendant.

Question 36

Was the warrant for regulatory purposes valid?

Answer 36

Searches that have an established set of standardized procedure and that are administered in good faith according those procedures will be admissible.

Question 37

Can the defendant’s lawyer seek to suppress the admissibility of evidence by use of the exclusionary rule?

Answer 37

The court in Mapp v. Ohio held that all evidence obtained by searches and seizure in violation of the constitution is inadmissible.

Question 38

Does the defendant have legal standing to object to the admissibility of evidence?

Answer 38

The court in Rawlings v. Kentucky held that standing to challenge the admissibility of evidence requires that the suspect have a reasonable expectation of privacy in the thing or placed searched. A legitimate expectation of privacy is measure by the totality of the circumstances test.

• Although ownership of the thing searched or seized is a factor in determining whether there is standing, it alone is not sufficient, the courts also consider right to exclude others, continuing access or legitimate presence plus possessory interest, and bailment.
• Minnesota v. Olsen (overnight guest)
• Minnesota v. Carter (business invitee)

When the exclusionary rule does not apply but the defendant’s rights have been violated the defendant can file a suit (Bivens if against federal enforcement officials or under section 1983, if against local officials)