Criminal Procedure: 4th Amendment Search & Seizure
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43 terms
Terms | Definitions |
|---|---|
 search or seizure | any action that is an invasion of some REP |
| accosting | an encounter with a state actor where a reasonable person would feel free to leave |
| seizure | reasonable person does not feel free to leave - state actor: 1) makes use of authority or use of force to seize AND 2) D yields or is captured |
| limited seizure or "Terry stop" | limited detention for investigative purposes (test: person - reasonable person would NOT feel free to leave; property - item detained for brief period) |
| arrest | test: person - reasonable person would feel freedom to leave was restricted in a significant way; property - item taken and fully searched/kept |
| search | any state action that is an intrusion upon or invasion of D's REP |
| frisk | officer must have RAS that the person is armed and dangerous ("limited search" - a cursory pat down of the outer clothing for weapons) |
| "full blown search" | full search of a person or property |
| 4th Amedment (generally) requires... | probable cause and a warrant |
| probable cause | reasonable belief that a crime has been committed and that person committed the crime (to arrest); that evidence is in place to be searched (to search): TOTALITY OF CIRCUMSTANCES (TOC) |
| sources of probable cause | reliability & basis of knowledge |
| reliability | 1) how believable is the person? 2) information given under oath 3) reliable hearsay 4) corroboration by police of hearsay information given 5) reputation of defendant |
| reliable hearsay | 1) concerned citizens - give their own name (most reliable) 2) anonymous tipsters (need more than just the tip) 3) paid informants (past record of reliability; informant makes statement against interest) |
| basis of knowledge | how does person who provided info know? officer's personal knowledge - own observations? informant's (hearsay declarant's) observations? (details indicate personal knowledge? level/amount of detail? type of detail?) |
| staleness | 1) PC is too old to justify acting on it 2) time from when police get information to time when police seek warrant 3) time from when police get warrant to time when they execute warrant (conduct search) |
| documents that make up a warrant | affidavit & warrant itself |
| affidavit | written testimony under oath that describes the PC and requests that warrant |
| warrant | court order permitting search and/or seizure |
| particularity requirements of the 4th Amendment | warrant must describe places to be searched and items to be seized with "reasonable particularity" |
| requirements of warrant | 1) personal appearance by person giving testimony 2) testify to facts under oath 3) facts must rise to level of probable cause 4) warrant must be signed by neutral and detached magistrate 5) must describe places and items to be seized with RP |
| 4 corners of the document" rule | court only looks to words of warrant to see is valid (exception - Franks hearing) used to challenge the warrant itself |
| good faith exception | warrant not valid, but officer relied in good faith on the signature of magistrate who found it valid (applies ONLY if there is a warrant) used to challenge the warrant itself LAST SENTENCE ON ANY ISSUE INVOLVING A WARRANT!!! |
| knock and announce | required but violation NOT an exclusion of evidence seized reasonable execution requirement |
| protective sweeps | for police protection search immediate area of people; search beyond, with RAS of others in the house |
| scope requirement | must stop search when find item(s) named in warrant search limited to terms of warrant or consistent with terms of warrant |
| exceptions to the warrant requirement: CAN STRIP SEARCH | Consent Arrest - Warrantless Arrest National Security/Border Search Special Needs Terry Stop and Frisk Regulatory/Administrative Searches Inventory Plain View/Feel Search Incident to Lawful Arrest Evanescent Evidence Automobile Roadblock/Checkpoint Community Caretaker Function Hot Pursuit |
| consent exception | permits police to make warrantless search or seizure, depending on what D consented to no PC or warrant required voluntariness - not coerced (TOC) authority - 3rd party consent scope |
| warrantless arrest exception | permits police to make warrantless arrest occurs in public place/place where officer has right to be PC required crime (misdemeanor - committed in officer's presence -MD says can arrest even if not in officer's presence (DV, misd theft, handgun/deadly weapons offenses); felony - even if not committed in officer's presence) reasonably prompt arrest after crime judge must confirm of PC after arrest within reasonable amount of time |
| plain view/feel (sense) exception | permits police to make warrantless seizure of property 1) police had right to be where they observed the item in plain view (in public or by warrant, even if not looking for that item) 2) item observed in plain view/feel/sense 3) immediately apparent (PC) without manipulation |
| automobile exception | permits police to make warrantless search of car 1) police must have PC to believe there is evidence of crime 2) in motor vehicle scope of search: anywhere in car, consistent with PC - car's interior, trunk, closed/locked containers |
| stop and frisk exception | permits police to make warrantless stop of a person/vehicle and investigate consistent with suspicion stop - limited seizure of a person frisk - limited search of a person requires RAS criminal activity is afoot and person detained is involved- more than a hunch but less than PC (lesser invasion/lesser seizure requires lesser suspicion) auto stops - can order all out of car viewed objectively |
| search incident to lawful arrest exception | permits police to make warrantless search lawful arrest (based on a warrant or different exception) incident (reasonably contemporaneous to the arrest) search (full blown search of arrestee's body or wingspan area - within reach/lunge/grasp) cars - includes interior is 1) arrestee has access to car at time of search, or 2) if search for evidence of crime for which person was arrested |
| evanescent evidence exception | permits police to make warrantless search or seizure (evidence is likely to be destroyed) |
| hot pursuit exception | permits police to make warrantless entry into property (hot pursuit of a felon) |
| inventory exception | permits police to make warrantless search of seized property purpose is to inventory property for community protection; police policy to search and inventory required and followed not a 4th Amend. search; no PC required |
| administrative searched exceptions | permits police to make warrantless search where main purpose is a regulatory function - general warrants okay searches of businesses - pervasively regulated businesses - usually dangerous businesses (e.g., coal mines, gun shops, nuclear power plants) searches of schools - students have reduced expectation of privacy; school can search school property (students lockers) w/o warrant or suspicion, or students possessions (students backpacks) w/ RAS - don't need PC or warrant |
| "special needs" searches | permits police to make warrantless search where some important societal issue (keep drugs out of school/drunk drivers off road), to serve societal interest permits random, non-discriminatory, typically brief, limited searches w/p warrant or any suspicion (random drug testing/DNA sampling, random checkpoint inspections) balance need for search v. degree of intrusion |
| community caretaker function exception | permits warrantless searches or seizures when purpose is to care for community, not law enforcement (enter a home on fire, search man found unconscious, seize abandoned bag on corner) |
| national security/at the border searches exception | full blown search permitted at any border without warrant and without PC (includes any port or airport) |
| exclusionary rule | remedy: suppression/exclusion of evidence seized in violation of the 4th Amendment suppresses the direct product of illegal police conduct applies in criminal trials only |
| fruit of the poisonous tree doctrine | suppresses indirect product of illegal police conduct EXCEPTIONS: 1) attenuation (evidence did not "flow" from illegal search or seizure - how long between illegal arrest and statement was made?) 2) independent source (2nd lawful source also lead to evidence - illegal confession, but also concerned citizen tol police) 3) inevitable discovery (2nd lawful source LIKELY WOULD HAVE lead to evidence - illegal confession BUT police were searching that area anyway) 4) good faith exception (ONLY applies if police acted in good faith and reliance on warrant) 5) negligent administrative errors exception (negligent admin. errors by court/police court causing violation, as in if police arrest D but warrant was recalled months earlier) |
| pretextual stop rule | an otherwise valid stop is not invalidated because the officer uses a minor offense to mask the real reason for the stop |
| duration of stop | may last no longer than necessary to effectuate its objective |
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