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Flashcards in Searches & Seizures Deck (139):

What does the 4th Amendment protect?

1. Protects people from unreasonable government search and seizures


2. Requires probable cause for government search and seizures.


What does the 5th Amendment protect?

1. Prohibits government coercion of confessions

2. Prohibits unreliable identifications


3. Provides privilege against self-incrimination


What does the 6th Amendment protect?

1. Provides a person who is formally accused the assistance of counsel of all critical stages of the adversarial process


2. Requires testimonial evidence be subject to adversarial testing (the confrontation clause)


How is the U.S. Constitution incorporated to the states?

The 14th Amendment.


A state statute that grants police authority to engage in conduct that violates the Federal Constitutional standard will be held?



The 4th Amendment applies only to who?

The government.

It does not apply to private conduct.


What is the Silver Platter Doctrine and its effect?

When a private party acting on his own does not trigger the 4th Amendment when he acquires evidence that the government later seeks to introduce in a criminal prosecution.


When a private party acts at the direction of a government agent or pursuant to an official policy to search an individual, is the 4th Amendment triggered?

Any search or seizure directed by the government is subject to 4th Amendment scrutiny.


When is a person is seized as the result of government action?

When a reasonable person in his position would not feel free to leave or otherwise terminate the encounter.


When is the 4th Amendment's reasonableness requirement triggered?

With any government seizure of a person or property.


What is the 4th Amendment protection if a reasonable person would feel free to leave or terminate a government encounter?

There is no seizure and does not trigger the reasonableness requirement.


When does a government seizure occur?

1. Physical force is used to restrain a suspect


2. The government makes a show of authority followed by submission.


If a suspect is located in a naturally confined location (an airplane), what is the test for a seizure?

Whether a reasonable person would feel free to terminate the encounter with the government agent.


What are all arrests?



What is a Terry Stop?

A brief investigatory seizure where the police require the suspect to interact with them.

Triggers the 4th Amendment.


What is the permissible duration of a Terry Stop?

The time necessary to confirm or deny the suspicion.


What is the effect if the suspicion prompting the Terry Stop is confirmed?

The suspicion becomes probable cause and an arrest is justified.


What is the effect if the suspicion prompting the Terry Stop is not confirmed?

The seizure must terminate.



Terry Stop v. Arrest

Investigation of reasonable suspicion v. Instigation of an action


What government action amounts to property being seized?

The police must take some action that results in a meaningful interference with a possessory interest.


Is property seized if police place something on the property (a tracker) that does not interfere with the owner's use of the property?

Not seized.


What does a search triggers?

The reasonableness requirement of the 4th Amendment.


What is a search?

Any government:

1. Investigatory trespass against a person or their property


2. Intrusion into a reasonable expectation of privacy.


What is an investigatory trespass?

Any government activity that intrudes upon a person, home, papers, or effects for the purpose of finding or gathering evidence of a crime.


A trespass qualifies as a 4th Amendment search only if the police have what intent?

Investigatory motive: actively gathering evidence of a crime.


When may a person assert his 4th Amendment rights?

Only when the government intrudes on a reasonable expectation of privacy.


What is required for a reasonable expectation of privacy?

1. ∆ has a subjective expectation of privacy by making an effort to shield the thing or the activity from the public


2. The expectation is objectionably reasonable.


A person does not have a reasonable expectation of privacy in something she knowingly?

Exposes to the public.


What is the expectation of privacy when the objects to be seized are held out to the public?

There is no reasonable expectation of privacy.


When is the police use of animals trained to detect only contraband is a search? When is it not a search?

Use of animals is a search when used in an investigatory trespass.

Use of animals is not a search at all other times (the smell is exposed to the public).


List examples of where there is not a reasonable expectation of privacy.

1. Handwriting exemplars

2. Voice exemplars

3. Bank records

4. Phone Call Records

5. Sender and Recipient of Email

6. Conversations the suspect believes are private that the police record with the consent of the other party to the conversation

7. Open fields: unoccupied areas beyond the curtilage of the home, even if police trespass into the open fields

8. Naked-eye observations of private property by air so long as police comply with flight limitations

9. Aerial photography of the large fenced in area around an industrial complex


10. Discarded property: such as commingled garbage and abandoned rental premises.


What must a search or seizure be to comply with the 4th Amendment?

It must be reasonable.


How does a warrant impact the reasonableness of a search?

It creates a presumption of reasonableness.


What must a ∆ prove to overcome the presumption of reasonableness that a warrant provides?

1. The warrant was not based on probable cause

2. The magistrate was not neutral or detached


3. The warrant failed to describe with particularity of the:

a. Thing to be seized


b. The place to be searched


What is a government action that uses a devices that are not in public use to see through a reasonable expectation of privacy?

It is a search.


A search or seizure without a warrant is presumptively?

Unreasonable, the government bears the burden of proving the search or seizure fell within an established exception to the warrant requirement.


What are the requirements for a valid warrant?

A warrant must be issued by:

1. A neutral and detached magistrate

2. Based on probable cause


3. Describe with particularity the thing to be seized or the place to be searched.


In applying for a warrant, the information (affidavit) presented to the magistrate must provide?

Relevant facts that lead to the conclusion that:

1. it is more probable than not that a person committed a crime


2. Evidence will be found at a locations


In applying for a warrant, the information presented to the magistrate must not be?

Stale: when enough time has passed such that the information is no longer good.


When will the method of warrant execution render the police action unreasonable?

The method of executing the warrant shocks the conscience.


What is the knock and announce rule?

Police must normally knock and announce their identity before entering a home to execute a warrant.


When do the police not need to knock and announce?

Knock and announce is not required if police have reasonable suspicion to believe that doing so will:

1. Endanger officers

2. Lead to the destruction of evidence


3. Lead to flight of the suspect.


What is the effect of a violation of the knock and announce rule?

1. The police violate the 4th amendment


2. The violation does not prompt evidence exclusion.


What is the analysis for search and seizure questions?

Step 1: Determine whether there was a search or seizure

Step 2: Ask whether there was a valid warrant

a. if so, look for facts that indicate the warrant was defective and the police acted in bad faith when they relied on it


b. If not, then consider whether an exception applies.

Step 3: Does the search or seizure falls into one of the established exceptions:

a. If so, the search or seizure is reasonable

b. If not, the search or seizure is unreasonable.


Without a warrant, the reasonableness of a search or seizure requires police to establish?

Individualized suspicions that amounts to either probable cause or reasonable suspicion.


When is probable cause is always required?

For a full scale intrusion to:

1. Find evidence


2. Arrest


Reasonable suspicion justifies what intrusions?

Brief investigatory seizure


Cursory search


Define probable cause?

Facts and circumstances that would warrant a reasonable person to conclude that the individual in question has:

1. Committed a crime


2. That evidence of criminal activity can be found at a particular location.


Probable cause is evaluated from what standpoint?

An objective standpoint. What officer subjectively believed does not matter.


Probable cause is always required to engage in what type of search?

A full scale intrusion.


What types of evidence establish probable cause?

1. Eye witness accounts

2. Forensic evidence and tests

3. Suspects own admissions or conduct


4. Tips from confidential or anonymous informant.


When is a tip sufficient to trigger probable cause?

The totality of the circumstances test is used to assess the reliability of an informant's tip to establish probable cause. The factors considered are:

1. The reliability of the informant

2. The basis of the informant's knowledge


3. Further investigation corroborates.


Define reasonable suspicion.

A reasonable belief based upon articulable information {more than a mere hunch} that the suspect has or is about to engage in illegal or criminal activity.


Reasonable Suspicion will never justify what type of search or seizure?

An arrest or a full-blown evidentiary search.


What will transform an officer's subjective opinion into a reasonable articulable belief?

Some verifiable objective fact to support her suspicion. 


What is required for an arrest?

Probable cause is always required for arrest.


What do police need to arrest a person in public?

Only probable cause.


When is an arrest warrant required?

To arrest a person in their own home.


What do exigent circumstances allow for?

A warrantless entry into a suspect's home.


What are the types of exigent circumstances?

1. The offense is more serious than a minor misdemeanor

2. The officer did not unlawfully create the exigency, and

a. An arrest attempt outside the home is thwarted because the suspect retreats into the home

b. There is insufficient time to get a warrant because delay would allow the subject to evade arrest or destroy evidence or

c. The arresting officer is in hot pursuit and has probable cause to effect a valid arrest.


When can a reasonable suspicion that crime is about to or has just occurred be established?

1. Police observations and eyewitness reports

2. Running from police in a high crime neighborhood


3. An informant's tip coupled with police investigation that corroborates the accuracy of the informant's predictions.


What is the effect of a tip that provides nothing more than existing information?

The tip does not establish even reasonable suspicion.


What is the permissible scope of a Terry Stop?

The time required for an officer acting in due diligence to:

1. Confirm


2. Deny the suspicion


How can reasonable suspicion rise to probable cause?

If during the investigatory stop the police officer obtains additional information rising to the level of probable cause, the Terry Stop may be escalated to an arrest and the suspect may be searched incident to that arrest.


How does an officer's improper subjective basis effect a Terry Stop?

The stop is still valid if there was an objectively reasonable basis for the stop.


When is no warrant is required to seize property?

When the property is in the officer's plain view.


What are the requirements of the plain view doctrine?

No warrant is required to seize property if:

1. The police are in a lawful vantage point when they observe the item

2. The incriminating nature of the item is immediately apparent


3. The officer has lawful access to sieze the item.


When is the plain view doctrine active?

At all times: with or without a warrant.


The plain view doctrine is an exception to?

The warrant requirement for a seizure; however, it does not justify a warrantless search for contraband.


What does the plain view doctrine not allow?

A search for contraband.


What is the scope of a warranted search limited to?

The premises or the person described in the warrant.


Contraband not named in a warrant may be lawfully seized pursuant to the plain view doctrine, so long as?

The contraband comes into view within the scope of the warrant.


What authority does a search warrant confer to the police?

1. Search named places


2. Search named persons.


A search warrant for a premises carries with it what right against the occupants?

The right to detain occupants during the search but not the right to search them.


A warrantless search is unreasonable unless it falls within one of the following established exceptions.

1. Searches incident to lawful arrest

2. Plainview

3. Automobile Exception

4. Border Exception

5. Consent Special Needs Requirement

6. Hot Pursuit

7. Exigent Circumstances


8. Administrative Search


What do searches incident to a lawful arrest (SITLA) allow for?

A search of the arrestee and the area within their immediate control (wingspan, lunging area).


When is SITLA triggered?

During a lawful arrest. During an arrest based on probable cause.


What is the authority to conduct a search incident to a citation?

There is no authority to search.


When can a search incident to a lawful arrest occur?

The search must be:

1. Contemporaneous with arrest


2. Precede it.


If a suspect is arrested in a home, what is the scope of a search incident to a lawful arrest?

The area within his lunging distance.

≠ the home


If police have a reasonable suspicion that others in a home may put them at risk, what action may the police take?

The police can conduct a cursory protective sweep to find people lying in wait with the search limited to places where people may hide.


When an arrest is effected while the defendant is in a car or has immediately exited the car, what is the scope of SITLA?

An officer may search:

1. Arrestee

2. If ∆ was able to access their car, then the interior of the car

3. If ∆ unable to access car, then the can search for evidence related to arrest.


If the arrestee has genuine access to the interior of the car after being placed under arrest, what is the scope of SITLA?

The interior of the car and all containers within the interior of the car.


If as the result of being placed under arrest the arrestee does not have genuine access to the interior of the car, when is a search of the interior is permitted?

Only when the police have a reasonable belief that evidence related to the crime of arrest is in the car.


What is the automobile exception to the warrant requirement?

Police may search an automobile or any other self-propelled conveyance (motor home, boat, or airplane) without a warrant as long as they have probable cause. This exception applies to all containers in the vehicle.


Once a container is put inside an automobile, what can the police search?

The container if they have probable cause to search the vehicle.


What is the scope of the search in the automobile exception?

The scope extends to wherever it's likely the suspect hid the contraband.


How does the automobile exception to the warrant requirement apply to immobile vehicles?

It is inapplicable if it absolutely cannot move.


What is the special needs doctrine?

Police are permitted to use checkpoints to conduct brief seizures and/or limited searches in response to a public safety danger that cannot be addressed by complying with the normal individualized suspicion/warrant requirements.


What must be the primary purpose of a special needs search or seizure?

To protect the public from imminent danger. If the purpose is general crime control, then the exception is inadequate.


Common special needs checkpoint searches include?

1. Sobriety checkpoints

2. Search for recently escaped prison inmates

3. Counter-terrorism checkpoints


4. Checkpoints to search for suspects of a recent crime.


What are the requirements for a special needs search or seizure?

1. It must be based on a fixed formula that deprives individual officers of the discretion to select the subjects (e.g. stopping every third car)

2. Narrowly tailored in scope to address the specific threat


3. Conducted in a location and in a manner that minimizes citizen anxiety.


Can police officers randomly stop a vehicle to check license and registration?

No, not without reasonable suspicion.


What does the border exception allow?

Customs officials to:

1. Stop vehicles at permanent checkpoints located at or near the border (including international airports and ports)


2. Conduct routine searches of people and property.


What is required for a non-routine border search?

Reasonable Suspicion


If an individual waives her right to privacy by consenting to a search, what is the legality of the search?

The search is reasonable and there is no need for probable cause.


When is consent to search valid?

When it is voluntary: assessed based upon the totality of the circumstances.


When is consent to search invalid?

Gained by:

1. Asserting a fake warrant

2. Fraud

3. Duress


4. An unlawful police threat (a threat to do something that the officer has no authority to do).


What is the requirement on police to inform persons of ability to decline consent?

There is none.


What determines the scope of consent?

1. Officer's request


2. The scope of ∆'s permission.


What is the validity of consent obtained following an unlawful seizure?

The consent is fruit of the poisonous tree.


Who can consent to a search?

Any person who has joint control or use of shared premises may consent to a valid search and any evidence seized can be used against any occupant.


When is police reliance on third party consent reasonable?

1. The person granting the consent has actual authority over the place searched


2. A reasonable person would believe that person had such authority.


Can a landlord give consent to search a tenant's residence?



Can an employer give consent to search an employee's private storage area?



When may police not reasonably rely on third party consent?

The other resident is to a home is present and objecting.


When police are in actual hot pursuit, what may the police do?

1. Enter and search a private dwelling while in hot pursuit of a fleeing suspect. Police may enter dwelling of a suspect or any other person


2. Police may execute a warrantless arrest of the suspect in the premises and seize any contraband that satisfies the plain view requirements.


What is the exigent circumstances warrantless search exception?

Police may search without a warrant when the situation indicates waiting to obtain a warrant will result in an imminent:

1. Destruction of evidence

2. Escape of the accused


3. Risk police or others in the area.


When does exigency justify a warrantless search and seizure of evidence in or on a suspect's body?

1. There is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained


2. The procedure for seizing the evidence is reasonable and does not shock the conscience.


What does exigency allow the warrantless search of at a crime scene?

1. Other killers


2. Victims


What is a Terry Search (frisk)? When is it justified?

A terry frisk is a cursory protective search for weapons that create an imminent danger to an officer or others in close proximity.

A Terry Frisk is justified only by reasonable suspicion the suspect is armed and dangerous. It is not automatic because the police did a terry stop.


Differentiate the justification for:

Terry Stop v. Terry Frisk

Terry Stop: reasonable suspicion that a crime is happening or about to happen.

Terry Frisk: reasonable suspicion that a suspect is armed and dangerous.


What is the scope of a Terry Frisk?

The exterior of the clothing to determine if there is a weapon.


What may an officer do if, in a Terry Frisk, the officer feels something he immediately knows is a weapon or contraband?

The plain touch doctrine: the officer may seize without a warrant.


What may an officer do if, in a Terry Frisk, the officer feels something he immediately knows is not a weapon but upon manipulation it may be contraband?

The manipulation exceeds the scope of the Terry Frisk and the seizure is unreasonable.


What are two circumstances where the Terry Frisk is extended beyond a person?

1. In an automobile where police have reasonable suspicion a person stopped will have immediate access to a weapon.


2. In a cursory sweep of the interior of a home when police enter the home to serve a warrant based on reasonable suspicion that there are others who might be present and dangerous to the police.


What are administrative searches?

Agency compliance inspections whereby compliance with administrative regulations or health and safety codes are verified for a non-criminal purpose.


What are the requirements for administrative searches?

Reasonable suspicion


What are the requirements to exclude/suppress evidence?

1. The unreasonable search or seizure must trigger the remedy of exclusion

2. The defendant claiming the remedy (seeking exclusion) must have standing


3. The facts do not support applying an exception to the exclusionary rule.


Exclusion requires a violation of what rights?

The movant's 4th Amendment privileges.


When does standing for exclusion occur?

∆ must show that the unreasonable search or seizure intruded on his personal constitutional rights.


When can a ∆ asset standing for exclusion on someone else's behalf?



What must ∆ show to prove standing for exclusion?

∆ must first show that the 4th Amendment violation was directed against his 4th Amendment protection, not someone else's.


When does a ∆ have standing for exclusion?

He has an ownership or a possessory interest in the place searched or the item seized.


Does the person in possession of a car rental have standing?



Do passengers of a car have standing to complain about search of the car?



When do guests in another's home have standing for exclusion?

1. Overnight guests have standing to challenge search of the home


2. Non-overnight guests do not have standing.


What is the effect of the exclusionary rule?

A defendant who has Fourth Amendment standing may invoke the exclusionary rule to prohibit the government from introducing evidence obtained as a direct or derivative result of an unreasonable search and seizure.


What is the fruit of the poisonous tree doctrine?

Any additional evidence derived from an initial illegality, is tainted fruit of the poisonous tree and suppressible.


When is evidence tainted by fruit of the poisonous tree?

If there is a but-for connection between the evidence the prosecution seeks to admit and a violation of the defendant's constitutional rights.


Will a miranda violation qualify as a poison tree and taint further evidence?

No, the only consequence of a miranda violation is the inadmissibility of a confession.


What are the exceptions to fruit of the poisonous tree doctrine?

1. Independent Source

2. Attenuation


3. Inevitable Discovery


What is the independent source exception to the fruit of the poisonous tree doctrine?

If the evidence is obtained from a lawful independent source it is not tainted.


What is the inevitable discovery exception to the fruit of the poisonous tree doctrine?

Future evidence is not tainted if the police establish they would have inevitably discovered the evidence through a different and independent source.


What is the attenuation exception to the fruit of the poisonous tree doctrine?

Evidence may be so distant from the initial illegality that the taint of the poison is purged and the evidence is admissible.


What is a common source of the attenuation exception?

When police obtain a voluntary confession following an unlawful arrest (as long as it does not come right after).


What factors support attenuation?

1. Evidence discovered in different location

2. The passage of time between discovery

3. A different officer discovered


4. A valid miranda warning.


What is the good faith exception to exclusion?

When police act in good faith reliance on a warrant that is subsequently ruled invalid, the evidence seized will not be subject to exclusion.


What are the limits on the good faith exception to exclusion?

Inapplicable when:

1. A reasonable officer would not have relied upon a warrant that is later found to be invalid

2. An officer lies or misleads the magistrate

3. Where the warrant is so facial defective that an officer should not rely upon it


4. Where the reasonable officer knows the magistrate is not neutral and attached.