Flashcards in Searches & Seizures WITHOUT Warrants Deck (20):
What are the 8 exceptions to the warrant requirement?
E- exigent circs
S- search incident to arrest
P- plain view
S- special needs
T- Terry "stop and frisk"
3 types of exigent circumstances
1- Evanescent Evidence-- ev that would dissipate or disappear in the time it would take to get a warrant (BUT NOT blood evidence in DUI where breathalyzer refused)
2- Hot pursuit of fleeing felon- allows cops to enter the home of a suspect or a 3rd party to search for a fleeing felon. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.
3- Emergency Aid- objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury
Search Incident to Arrest requirements . . .
- arrest must be lawful
- timing must be contemporaneous in time & place w/ the arrest
- geographic scope:
MBE- the wingspan which includes the body, clothing, and any containers w/in the arrestee's immediate control w/o regard to the offense of the arrest
NY- to search containers w/in wingspan, an officer must suspect that the arrestee is armed
Automobiles Searched Incident to a Custodial Arrest
(Remember-- different from the automobile exception)
-the interior cabin, including closed containers, but NOT the trunk
Secured v. Unsecured Arrestees
- MBE: once an officer has secured an arrestee the officer can search the vehicle ONLY if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made
- NY: once the occupant is out of the car, police may not remove closed containers or bags from the car to look for weapons or other evidence as an incident of the arrest. They may search the car only if some other exception applies.
What is the standard and scope of consent?
Standard- must be voluntary & intelligent (but need not tell a/b right to refuse)
Scope- all areas for which a reasonable officer would believe permission ot search was granted
Consent & Shared Premises
- when adults share a residence, any resident can consent to a search of common areas
- if co-tenants disagree regarding consent to search common areas, the objecting party prevails as to areas over which they share dominion and control
Standard- police officers must have PROBABLE CAUSE to believe that contriband or evidence of crime will be found in the vehicle
Scope- the entire vehicle; may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search
Traffic stops & auto searches
An officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before initiating the search.
Requirements for seizure of an item in plain view . . .
1- lawful access to the place from which the item can be plainly seek; and
2- lawful access to the item itself; and
3- the criminality of the item must be immediately apparent
- when do they commonly occur?
- what are the requirements for constitutionality?
- commonly occur when arrestees are booked in jail and when vehicles are impounded
- Constitution requires: (1) the regulations governing them be reasonable in scope; (2) the search complies w/ those regulations; and (3) the search must be conducted in good faith, meaning it is motivated SOLELY by the need to safeguard the owner's possessions and/or to ensure officer safety. [officer's subject intent matters]
What are special needs as to justify a warrantless search?
1- Random drug testing (most important!)- railroad employees following an impact accident; customs agents responsible for drug interdiction; and public school children who participate in ANY extracurricular activities
2- Parolees- warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole
3- School searches- warrantless searches of the person and the affects of public schoolchildren are permissible to investigate violations of school rules so long as REASONABLE at its inception and NOT EXCESSIVE in light of the age/sex/nature of the infraction
4- Border searches-- nobody has a 4A right against routine searches of persons and effects at the border
What is a Terry Stop?
Def- A brief detention or seizure for the purpose of investigating a "reasonable suspicion of criminal activity" based on specific and articulable facts.
- can take place anywhere
When is a person "seized" for fourth amendment purposes?
When, based on a totality of the circumstances, a REASONABLE PERSON would not feel free to leave OR to decline an officer's request to answer questions.
Factors to consider-
- whether officer brandishes a weapon
- officer's tone and demeanor
- whether the individual was told she had the right to refuse consent
Is police pursuit seizure?
(MBE & NY)
MBE- an individual is seized only if he submits to the officer's authority by stopping or if the officer physically restrains him.
NY- police pursuit is a seizure in and of itself. * It impedes the individuals freedom of movement, and so must be based on "reasonable suspicion" that a crime has been, is, or is about to be committed. *
Three Important Principles Re: Traffic Stops
1- both the driver and the passengers are seized, so EITHER can challenge the legality of the stop
2- the officer may, in her discretion, order drive and passengers out of the car
3- dog sniffs at traffic stops are permissible provided the sniff does not unreasonably prolong the stop
What is a Terry Frisk?
A pat down of the body and outer clothing for weapons that is justified by an officer's reasonable and articulable belief that a suspect is armed and dangerous, based on specific and articulable facts.
What can be seized during a terry frisk?
MBE & NY:
- something that reasonably appears to be a weapon
- something the officer recognizes as contraband w/o manipulating the object
When conducting a traffic stop, if an officer reasonably believes that a suspect is dangerous, he may search the passenger cabin of the vehicle, limited to those areas in which a weapon may be placed or hidden
- When making an arrest, police may "sweep" the area IMMEDIATELY ADJOINING the place of arrest to look for criminal allies of the arrestee whose presence may threaten officer safety
- to justify a sweep of more REMOTE AREAS, the arresting officers must have additional facts sufficient to allow a "reasonably prudent" officer to conclude that an individual who may threaten officer safety is present in the area swept