Probable Cause & warrantless search exceptions Flashcards
When is probable cause determined?
At the moment of the arrest, search, or application for a warrant. Were the facts known or reasonably assumed, enough to warrant a prudent person to believe
§ The person arrested had committed or was committing an offense; OR
§ There was evidence of a crime on the person or premises searched or to be searched.
Fair probability standard form Illinois v. Gates
Must there be absolute certainty when performing a search or arrest?
No, probable cause does not require absolute certainty
The Warrantless Search Exceptions
- Plain view
- Search incident to legal arrest
- Booking exception
- automobile exception
- inventory search
- consent
- Administrative (building) inspections
The plain view exception
When the cops are in a place they are allowed to be, they can seize anythin clearly visible.
The three requirments for the plain view exception.
Cops can seize objects that they believe are the instrumentality of a crime if:
1. lawfully in location
2. lawful access to the object
3. the incriminating nature was immediately apparent
Searches incident to legal arrest
officers who have made a custodial arrest may, as a matter of routine, search those places and things over which the suspect had “immediate control.” (wingspan)
What can be searched during a search incident to a legal arrest?
§ The arrestee’s person;
§ Containers found on the arrestee;
§ Items within the arrestee’s control; and
§ The physical space around the arrestee.
When can an arresting officer move a suspect outside an arrest radius?
When reasonably needed to protect themselves.
Searches incident to lawful arrest inside the home.
Any search in an arrestee’s home beyond arrestee’s person and the area within his immediate control is unreasonable under the Fourth Amendment of the Constitution
Protective sweeps
a quick and limited search of the premises incident to an arrest and conducted to protect the safety of police officers or others.
Must be mentioned if there is an arrest in the home
How far may officers go during a protective sweep?
not a full search, just a cursory search of an area people may be hiding. The objective is officer safety
Booking exception
A search after a suspect has been booked but before they are placed in jail
When can a suspect be strip searched?
officials may strip-search individuals who have been arrested for any crime before admitting the individuals to jail, even if there is no reason to suspect that the individual is carrying contraband.
What are the standards for searching the home of a probationer?
Neither a warrant nor probable cause is needed for an administrative search of a probationer’s home.
Automobile exception
cars may be searched w/o a warrant when evidence or contraband may possibly be removed from the scene due to the mobility of a vehicle making it impractical to secure a warrant.
Who may challenge seizure of a car
All occupants can challenge the seizure of the car, but not necessarily the searches.
Inventory search exception
A warrentless search of a vehicle lawfully taken into custody
Purposes of an inventory search
§ To protect the owner’s property while it is in police custody
§ To protect the police against claims of lost or stolen property
§ To protect the police from dangerous instrumentalities which may be in the vehicle.
Must an inventory search be premised on a danger to public safety?
No, If an inventory search is properly conducted is all that matters
Can a car’s contents be catalouged as a pretext for an investagative search?
No, but as long as the search isn’t for the purpose of finding evidence, then it isn’t unreasonable.
Are probable cause or reasonable suspicion needed for an inventory search?
No
Consent
Consent must be a fully voluntary act by the suspect
When can a 3rd party grant consent?
When they posses apparent authority over the premises & cops have a reasonable belief of the party’s power to consent.
Co-occupant consent
Either co-occupant can consent to a search of the home provided that the other co-occupant is not present and objecting
does not apply if there is a recognized hierarchy (parent/child)
