Search & Seizure Flashcards
What is the 4th Amendment?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and describing the place to be searched and the persons or things to be seized
When does “seizure” of a person occur?
- When a peace officer physically applies force with the intent to restrain or
- When a person voluntarily submits to a peace officer’s authority
What are additional considerations before the exclusionary rule will be invoked?
- Was the evidence obtained as a direct result of the illegal police conduct
- Would the evidence have been legally discovered anyway
What is “standing?”
A defendant must show that the illegal search or seizure, invaded his, or her own personal, reasonable, and legitimate expectation of privacy
What are the factors to establish “standing“
- whether the defendant has a property or possessory interest in the thing seized, or the place searched
- whether he has the right to exclude others from that place
- whether he has exhibited a subjective expectation that it would remain free from governmental invasion
- whether he took normal precautions to maintain his privacy
- whether he was legitimately on the premises
Who has “standing” of a car?
The owner of a car “almost always” has a reasonable expectation of privacy in the car. The driver generally has standing to challenge a trunk search, whereas a passenger normally does not. If a car is stolen, neither the driver, nor the passenger has standing to a search of the car. The lessee of a rental car does have standing. Even a driver who is not on the rental car agreement, but otherwise is in lawful possession and control of the rental car has standing to challenge the search of the car.
Does an employee have an expectation of privacy on a work computer?
There is no reasonable, expectation of privacy in a work computer, subject to monitoring, an Internet use, firewall, and a prohibition against personal use.
What is the “good faith“ claim?
The courts will look to whether a “reasonably well-trained officer would have known that the search was illegal” in light of all the circumstances. The inquiry looks to the objective facts only, which can include a particular officers, knowledge and experience.
What is the exclusionary rule?
The purpose of the exclusionary rule is “to deter, deliberate, reckless, or grossly negligent conduct, or in some circumstances, recurring or systemic negligence.”
What is a “consensual encounter?”
A contact between an officer and an individual that is strictly voluntary.
Can a police officer approach an individual in a public place, identify themselves as law-enforcement, and in a non-coercive manner, ask the individual a few questions without reasonable suspicion?
As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual, and no reasonable suspicion is required
Can a police officer ask a person for identification during a consensual encounter?
Yes. The law is clear that questions regarding identity, and a request for identification are allowed.
What is a “knock and talk?”
A knock and talk is a consensual encounter that takes place at the doorway of a home. It is a situation where you knock politely at a reasonable hour, without any type of badgering or compulsion. persistent, loud, knocking, a demand to open the door, or any other coercive circumstance, can turn a knock and talk into a detention. If the contact remains consensual, officers may request permission to enter, or search the residence.
What about Officer safety concerns during a consensual encounter?
You may always do whatever is reasonable to protect yourself, even during a consensual encounter. Even ordering a person to keep his hands in sight, or to remove them from his pockets, will not necessarily convert a consensual encounter into a detention.
What is the definition of a “detention?”
A “detention” occurs whenever a reasonable person would believe he is not free to leave or otherwise disregard the police and go about his business. It may result from an officer’s use of force, physical restraint, unequivocal verbal commands, or words or conduct that clearly relate to the investigation of specific criminal acts.
The application of physical force to the body of a person with intent to restrain, is a seizure, even if the person does not submit, and is not subdued.
