Search & Seizure Flashcards
(97 cards)
1
Q
What may a search warrant be issued for?
A
The search of specified places, things, or persons.
2
Q
May seizures go beyond things specified in the warrant?
A
Yes.
3
Q
What is the procedure for issuance of a warrant?
A
- Complaint supported by affadavit is submitted
- Person authorized to issue a warrant reviews to see if probable cause is supported by the complaint
- If there is PC,person issues warrant.
4
Q
What is the rule regarding general search warrants?
A
No general search warrant may be issued. The affidavit must describe places,things,or persons to be searched.
5
Q
How is an affidavit that relies on an informant tested to determine probable cause?
A
Totality of the circumstances test. Reliability and credibility of the informant and is basis of knowledge are intertwined considerations. e.g. If the informant isn’t credible but his basis of knowledge or vice versa,PC can be found.
6
Q
After a warrant is issued,how long may the cops wait until the warrant is void?
A
15 days.
7
Q
What is the general rule regarding searches without warrants?
A
No one may search any place,thing,or person without a valid search warrant.
8
Q
What is the wildlife exception regarding warrantless searches?
A
Any officer empowered to enforce game,marine,or fishery laws may search a common carrier,storage room,or warehouse.
9
Q
Who does the Fourth Amendment NOT apply to?
A
Parties other than government officials who conducted a search.
10
Q
What is the rule regarding timely motions to suppress illegally seized evidence?
A
A motion to suppress illegally seized evidence must be timely made to avoid the possibility of waiver.
11
Q
Denial of a motion to suppress illegally seized evidence is not appealable without…
A
a final judgement on the merits.
12
Q
What is the rule regarding strip searches?
A
No person in custodial arrest for a traffic infraction or other similar minor crimes may be strip searched unless there is reasonable cause to believe the individual is concealing a weapon. Strip searches must be performed by the same gender.
13
Q
What is the rule regarding seizure and forfeitre in drug cases?
A
Property used in connection with or derived from illegal drug transactions may be seized.
14
Q
What is the rule regarding anonymous DUI tips?
A
Not sufficient under the totality of the circumstances test, unless it includes information predicative of criminal activity. Merely informing the police of the name and whereabouts of a person allegedly driving drunk is not sufficient.
15
Q
For something to be a search,it must have been executed by a government agent. What are the two important categories of government agents?
A
- publicly paid police on or off duty; 2. private citizens if and only if they are acting at the direction of the police.Note: private security guards generally are not government agents.
16
Q
What is a search?
A
Any official action that intrudes upon a person’s reasonable expectation of privacy.
17
Q
What does it mean if something is not a search?
A
If it’s not a search,police can do it.
18
Q
What are some examples of conduct not constituting a search?
A
- aerial surveillance of a fenced yard
- examination of trash left in yard
- determining numbers dialed from residential home (pen register) (but not the content of the convos)
- having a dog sniff luggage in airport
- account records (e.g. bank records) held by a third party
- the sound of your voice
- odors emanating from your car or luggage
19
Q
What are some examples of conduct that constitutes a search?
A
- rigorous squeezing of luggage in a bus overhead rack
- thermal imaging scan of residence
- attaching a tracking device to a vehicle and using it for long-term monitoring of the vehicle’s location
- bringing a drug-sniffing dog onto the porch of a house
20
Q
What’s the plain view doctrine?
A
officers merely exercise their right to engage in plain view and do not search if they:
- reach a location without violating the fourth amendment; and
- simply look at something in open view
21
Q
What’s the open fields doctrine?
A
- officers who go upon any unoccupied or undeveloped area of land not part of the curtilage of a dwelling do not search 2. curtilage is the area surrounding and used in connection with a residence 3. examples of curtilage include back yard enclosed by a fence; front porch
22
Q
If I’m on the fence about whether something is a search,what should I do?
A
Ask myself whether a Supreme Court Justice’s privileged white male ass would see himself in the shoes of the likely nonwhite,nonprivileged defendant.
23
Q
A search must be what?
A
Reasonable
24
Q
What are the requirements for a search to be reasonable?
A
- must be pursuant to a valid search warrant (but exceptions); and 2. must be based on probable cause.
25
How is PC determined for search purposes?
Using facts from which a reasonable person would conclude that there is a fair probability that seizable items will be found in the premises.
26
What does PC require proof of?
Requires proof of a fair probability that contraband or evidence of crime will be found in the area searched
27
Is hearsay admissible for determining probable cause?
Yes.
28
Can an informants tip be anyonymous?
Yes,but be sure to balance reliability/basis test.
29
What is the rule regarding dog sniffs during traffic stops?
During a routine traffic stop,a dog alert to the presence of drugs creates PC to search the car.
30
What is the rule regarding DNA swabs after arrests? When police arrest for a serious offense
it is reasonable to take and analyze a cheek swab of DNA. serious offense not defined.
31
What items can be subject to a seizure?
a. contraband (something illegal to possess)b. fruits of crime- things you got bc of the crimec. instruments of crime d. evidence that a crime was committed or that a particular person committed it (mere evidence) e.g. you did the crime in a red shirt. Shirt seizable
32
A warrant must be issued on information constituting what?
Probable cause
33
What must a warrant affidavit set out?
facts from which issuing magistrate can make independent judgement that probable cause exists
34
What must a warrant describe?
A warrant must specifically describe both: 1. place to be searched; and 2. items to be searched for and seized
35
Officer Joseph A. Pig fills out a warrant for judge signature that is for evidence linked to the murder. Is this reasonable?
No. No general warrants authorizing fishing expeditions.
36
What is the rule regarding no-knock warrants?
before entering premises,officers must knock and announce and give occupants opportunity to admit the officers.
37
What is the exception allowing for no-knock warrants?
if officers had RS that occupants inside would either resist with force or remove/destroy items for which warrant is issued.
38
When were no-knock warrants deemed reasonable?
when there was PC the occupant was dealing drugs,had violent criminal history,and kept a cache of weapons in the home
39
When was a no-knock warrant deemed unreasonable?
when the person was just a drug manufacturer with no other aggravating circumstances
40
What must the scope of a search be limited to?
both:
1. place described; and
2. within that place,those locations where described items might reasonably be expected to be located. i.e. looking for a large item? Can't search a container smaller than it.
41
What can an officer seize?
1. items reasonably believed to be those described; and
2. other items found in plain view during search if PC exists to believe they are seizable.
42
In order for something to be in plain view,what must the officer not do?
anything to find that item other than observe it while in the process of searching what you're searching for.
43
When do plain view seizure rules NOT apply?
When the officers are searching improperly.
44
Is plain view a search or seizure?
Seizure,not a search. You can seize something in plain view,not search it. So you can't just go into a seemingly innocent backpack because it's plain view.
45
How do you challenge a warrant for false information?
must show that police officer:
1. misstated facts
2. intentionally or recklessly with respect to the trust
3. and that the misstated fact was material,so that without that fact,the affidavit was not sufficient
46
What are the exceptions to the warrant preference rule?
* Consent
* automobile exception
* SILA
* inventory
* exigent circumstances
* special needs
* plain view
* plain touch
* terry stops
* terry frisks
47
For consent,do the police need a warrant or PC?
No.
48
What are the requirements for an effective consent?
1. Must be voluntary
1. can't be coerced.
2. Must be from either:
1. (actual authority) someone with a general right of access to the premises,or
2. (apparent authority) someone who police reasonably believes to have that access
49
What is the consent rule for joint occupants?
Officers need consent from only one of several joint occupants.
50
What is the exception to the consent rule for joint occupants?
If joint occupant at whom search is directed is present and actively objecting,consent from other joint occupants is not effective. But the police can just wait for the objecting occupant to leave,arrest him,and then search.
51
What is the rule regarding scope of consent?
Consent can be limited to certain places/items.
52
What is the rule if there is a dispute regarding what an occupant meant by their words giving consent?
Consent covers what a reasonable person in the situation would understand the consent to cover.
53
What is the rule if a person without actual authority to consent gives consent?
The consent is still valid,provided the officer reasonably believed that the consenting party had actual authority.
54
What's the exception to the rule regarding apparent authority to search?
i. Hotel operators ii. landlords
55
Do officers have to tell you that you have the right to refuse consent?
No.
56
If you give broad consent to search somewhere,may officers search inside containers found there as well?
Yes. But,you can set the scope of the consent to certain areas only,and cops still cannot search anywhere the suspected items could not reasonably be seized.
57
What is the vehicle (Automobile) Exception to the warrant requirement?
Moving vehicles and those parked in public places can be search without a warrant. But,police need PC to believe contraband is in the car.
58
In order to qualify under the automobile exception to the warrant requirement,do the cops need PC at the time they pull you over?
No. They can use things that happened after police stopped person to determine PC. Search can extend to any place where items might be found.
59
What is the rule for SILA?
The police can search the vehicle after arresting someone who was in the vehicle if there is reason to believe evidence related to the crime of arrest is located in the vehicle or the arrestee is unsecured
60
Where in a vehicle can an officer search if he is using SILA as a basis?
The passenger compartment (including glove compartment) but not the trunk.
61
After securing an arrestee,i.e. by handcuffing and placing in squad car,when can the officer search the arestee's vehicle?
ONLY if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest is made. e.g. if arrested and secured for speeding,canÕt search for drugs.
62
What is the inventory exception to the warrant requirement?
A properly impounded vehicle may be inventoried pursuant to standardized procedure. If it violates procedure or there is no procedure,the police cannot inventory search.
63
What is a pretextual stop?
Stopping someone for a reason other than the officially given reason. The real reason is usually nefarious.
64
What is the rule regarding pretextual stops?
If the officers have PC to believe a traffic violation was committed,their actual motive is irrelevant
65
What is the rule regarding the exigent circumstances exception to the warrant requirement?
A warrantless search is permitted if officers have both:
1. a reason to believe delaying the search to get a warrant would result in removal or destruction of the subject items,and
2. PC to believe seizable items will be found
66
Can a police officer draw blood to prove a DWI under the exigent circumstances exception to the warrant preference rule?
Yes,because BAC dissipates in the blood stream. But,police cannot do this all the time,nor automatically. Look at the totality of the circs to see if it is reasonable for police to be able to get the warrant.
67
Under the exigent circumstances exception,what is the rule regarding hot prusit of a fleeing felon?
When looking for a suspect,the police can enter a suspectÕs home or that of a 3rd party into which he has fled.
68
Under the exigent circumstances,is exigency alone enough to bypass the warrant requirement?
No,you still need probable cause.
69
What is the rule regarding the special needs exception to the warrant requirement?
Warrantless search is permitted if law enforcement,governmental employers,or school officials have an interest other than law enforcement.
70
If a valid custodial arrest is made under SILA,there is an automatic right to search 2 places:
1. The arestee's person (which includes pockets and items found on the person of the arrestee) and
2. Anywhere the arestee could reach.
71
What is the rule regarding timing of a SILA search?
The search incident to arrest must be contemporaneous in time and place with the arrest.
72
What is the rule regarding SILA and protective sweeps?
If an arrest is made indoors:
1. officers can automatically look in immediately adjoining places where persons might be concealed
2. a protective sweep of entire premises can be made but only if officers have RS that other dangerous persons might be present
73
What is the reasonable arrest requirement under SILA?
In order to arrest someone and search them under SILA,the officer must have PC to believe the person committed the subject offense.
74
Under SILA,when is a warrant required for the SILA arrest?
When the cops are entering a premises to search for and arrest the suspect. If the premises is the suspect's own home,an arrest warrant is sufficient to do a SILA search. If you're searching another premises,a search warrant is required.
75
How does the inventory exception come about?
After an arrest the police may inventory all of the arrestees personal belongings and or the contents of an impounded automobile.
76
What must the police do when conducting an inventory search?
Follow an existing department policy.
77
Under the inventory exception,what can police seize?
Any contraband found during the inventory
78
Detention,not arrest,can often be justified as what?
A Terry stop.
79
What is a Terry stop?
A brief detention or seizure for the purpose of investigating suspicious conduct.
80
Where can a Terry stop take place?
Anywhere e.g. on the street in a car in an airport concourse or on a bus.
81
When is someone seized under the Fourth Amendment?
When,based on total. of circs a reasonable person would not feel free to leave or to decline an officers request to answer questions.
82
In evaluating whether an individual has been seized during questioning by law enforcement,you should consider:
1. whether an officer brandishes a weapon
2. the officers tone and demeanor when interacting with the individual questioned and
3. whether the individual was told she had the right to refuse consent.
83
What is the seizure rule regarding a person who actively tries to flee seizure?
When being pursued by a police officer,an individual is seized only if he submits to the officer's authority by stopping or if the officer physically restrains him. So,if the suspect runs from cops and throws out/accidentally spills drugs,he wasn’t seized and drugs admissible.
84
Who can challenge a seizure during a traffic stop?
Both the driver and passenger,because both are seized during a traffic stop.
85
If a K9 sniffs the exterior of a car during a traffic stop when the officer is checking the driver's license,is it a full seizure?
No,because DOGS ARE MAGIC and there was no more of a seizure than if the dog wasn't there.
86
What are the only two times where dogs aren't magical?
1. When theyre used to sniff outside a person's home this is a search and dogs do not create PC for warrantless search and
2. when summoning them for a search takes so long that it constitutes a full seizure.
87
What is a Terry stop for investigation based on?
Reasonable suspicion.
88
What is reasonable suspicion?
Some objective basis for officers suspicion that suspect has committed is committing or is about to commit a crime.
89
Is an anonymous tip enough for reasonable suspicion?
No if not adequately corroborated.
90
What are the limits on Terry stops?
1. cannot be lengthy-too long is seizure and you need PC
2. suspect cannot be extensively moved not to station house and 3. no automatic right to search.
91
What is a Terry frisk?
a limited pat-down for officer safety.
92
What does an officer need for a proper Terry frisk?
RS that the person is armed and dangerous.
93
What is the scope of a Terry frisk?
Officer can pat down the outer layer of the clothing.
94
What is plain feel?
Officer can seize if:
* After Terry frisk,
* the officer finds contraband without moving or further feeling the object in the persons pockets.
If officer doesnt recognize item cannot pursue further. Can't conclude its not a weapon and continue to feel the item and recognize it as drugs. Must be immediate.
95
What is a car frisk?
When conducting a traffic stop if an officer believes that a suspect is dangerous he may search the passenger cabin of the suspects vehicle limited to those areas in which a weapon may be placed or hidden in the trunk.
96
What is the difference in the RS standard for Terry stops vs. frisks?
For terry stops- specific and articulable facts that inform an officers belief that criminal activity is present For Terry frisks specific and articulable facts that suggest a suspect is armed and dangerous.
97
A suspect is seized only if:
a. officer physically restrains him or
b. the officer makes a show of authority and the suspect submits.
