Advertisement Upgrade to remove ads

Search warrants: Knock and Announce Rule

The officer must knock and announce presence before entering.

Search warrants: Knock and Announce Rule- Exception

The officier reasonably expects that knocking would be futile, endanger the officer or someone inside or thinks that evidence will be destroyed.

Search warrant

Defines range and term of search

Exceptions to search warrant requirement

There are 7
1) Consent
2) Stop & frisk
3) Search incidental to lawful arrest
4) Auto search
5) Exigent circumstances
6) Plain view
7) some administrative search

Lack of consent for warrantless searches

Hotel manager cannot consent to the search of a guest's room.

Searches of places and things: Dwelling places

Officer must have warrant to search dwelling place, unless:
1) Second person consents
2) Officer is in hot pursuit
3) Probable cause that dwelling contains contraband that will be destroyed
4) prevent injury to someone in the dwelling
5) probable cause to arrest and warrantless search necessary to prevent defendant's escape.
6) exigent circumstances

Searches of places and things: Emergency aid exception

Can only enter without warrant to aid injured person or to prevent injury.

Reasonable Expectation of Privacy Standard

The appropriate analysis for determining if that expectation exists is as follows:
1) Does a person display a subjective expectation that he will not he subject to government intrusions?
2) Will society objectively accept the persons' expectation of privacy as reasonable baed on the following circumstances?
- the type of property that was searched
- the means the person employed to safeguard the property
the extent of an officer's intrusion by means of surveillance

Reasonableness in exigent circumstances

Although warrantless searches and seizures inside a home are presumptively unreasonable, one can overcome that presumption when the exigencies of the situation render the needs of law enforcement compelling enough that the warrantless search is objectively reasonable

Warrant requirement for electronic surveillance

Warrantless searches by electronic means on per se unreasonable. Conversely, an officer's use of a pen regiset to record all phone numbers a person dials does not violate any expectation of privacy that the person has in those numbers.

Consent is exception to warrant requirement (electronic surveillance)

An exception to those holdings may apply if the parties to the conversation consented to the recording of their conversations

Privacy of expectation around dwellings

A person's expectation of privacy decreases as the distance from the dwelling increases. A lesser expectation of privacy exists in the curtilage.

Legal standard for curtilage

4 factors
1) the area's proximity to a dwelling
2) Extent that enclosures around the dwelling encompass the area
3) the dwelling owner's use of the area
4) the owner's efforts to maintain the area's privacy

Aerial Surveillance of Curtilage

Usually permissible when
1) through aerial surveillance from navigable airspace.
2) that occurs in a non- intrusive way
3) does not expose any intimate activities that
4) typically are related to the use of a dwelling

Open fields doctrine

No privacy expectation

Privacy expectation in business property

Business owner possess a reasonable expectation of privacy in that part of the owner's commercial business property not generally open to the public

Privacy expectation in public areas- Closed public areas

A search requiring probable cause occurs when a police officer surreptitiously obtains views of unlawful activity within a closed public area, such as a public restroom or a fitting room of a clothing store.

Privacy expectation in public areas- Open public areas

No search occurs if the officer obtains views of unlawful activity within an open public area. A prisoner lack any reasonable expectation of privacy in the prisoner's personal property in a prison cell.

Privacy expectation in abandoned property

A person has an interest in property protected by the 4th amendment only if he possesses an expectation of privacy in the property. If no expectatuon of privacy exists, then any search of the property is not protected by the constitution.

Privacy expectation in abandoned property: household refuse

A person who places a bag of garbage for collection lacks a reasonable expectation of privacy in the bag's contents. Thus, no such search subject to constitutional protection.

Privacy expectation in abandoned property: litter

subject to search

Privacy expectation in abandoned property: trash in lodgings

trash in someone's hotel waste basket before they check out is subject to search.

Privacy expectation in abandoned property: abandoned vehicle

Person who abandons vehicle has no expectation of privacy. How do you know vehicle is abandoned?
1) person's conduct manifests an intent to relinquish any interest in the vehicle, and
2) the person deals with the vehicle in such a manner that no reasonable expectation of privacy exists.

Privacy expectation in information: exposed information

No privacy expectation. If a person voluntarily exposes information to the public, then there is no privacy protection. Even if it happens in their dwelling or office. Ex: paper or documents that may be readily observed through a window. Conversely, reasonable expectation of privacy exists for hidden information

Privacy expectation in information: non-privileged information.

Person who knowingly and voluntarily conveys non privileged information assumes risk that:
1) the other person or entity may transmit that information to an officer
2) that person is an officer

Privacy expectation in information: federal patriot act

In terrorism cases, the FBI may secretly issue a national security letter to obtain certain information rather than obtaining a search warrant. Includes a gag order on the recipient of the national security letter.

Searches of persons

4th amendment as protecting a person's privacy interests from a search to a greater extent than its protection of places or things

Reasonable suspicion justifies limited search: criminal conduct or danger

An officer may detain a person temporarily for questioning and frisk the person's clothing for weapons on the basis of reasonable suspicion rather than probable cause. Reasonable suspicion exists where a police officer observes unusual conduct which leads him to reasonably concluse that, in light of his experience as a policeman, that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous and where in the course of investigating he identifies as a policeman and makes reasonable inquiries, and where nothing in the initial states if the encounter serves to dispel his reasonable fear for his or other's safety.

Legal standard for pat-down

Terry test
1) Does the officer have reasonable suspicion?
2) that the person is armed and dangerous?
3) and the reasonable suspicion based on specific articulable facts?

Frisk for weapons

Must be restricted in scope to the exterior of clothing and inside of pockets, only if pockets appear to contain weapon. Purpose is to protect the officer and others by discovering a weapon. May not be used as general means to obtain evidence.

Pat down search providing probably cause

Officer will not need to obtain a warrant to seize the contraband if it is inherently destructible and could be destroyed while a search warrant was being obtained.

Warrantless search to lawful arrest

Even in the absence of probable cause a warrantless search for weapons or evidence that occurs to a lawful arrest is constitutionally permissible. Prerequisites:
1) the search must occur concurrently with an arrest 2) the arrest must be of a custodial nature.

Scope of search incident to lawful arrest

Depends upon factual context

Scope of search incident to lawful arrest: search of a person

Officer may search for weapons and contraband in a person's possession, this includes the clothing person is wearing and their pockets.

Scope of search incident to lawful arrest: search of a surrounding area.

Search may extend to space under a person's "immediate control" where they could reach a weapon or evidence. Inside of a building it includes a space when a person could attack an officer. Officer may not move person to increase size of area.

Search may extend to space: protective sweep of a home

When a person is subject to lawful arrest in a home officer may conduct a protective "sweep" search of the home if the officer reasonably believes it contains another person who would present a risk of danger

Search may extend to space: inventory search of a person

A search incident to a lawful arrest may occur in order to inventory the clothing and belongings of a person prior to custodial detention. Incriminating forensic evidence may be obtained from that clothing.

Search may extend to space: search for physical characteristics

No search resulting from requiring a person to give a voice or handwriting sample.

Search for bodily fluids: general circumstances

Search occurs when a person's bodily fluids are obtained and tested for the presence of contraband. Factors for reasonableness:
1) prosecutor's need for evidence
2) severity of the medical invasion of the person's body and
3) threat to the individual's health, safety and dignity.

Search for bodily fluids: emergency circumstances

Under exigent circumstances in which lives are at risk or evidence may be destroyed, an officer who possesses probable cause does not need to get a search warrant to search inside a person's body. Probable cause must be baed on clear indication that evidence of criminal activity exists beneath a person's skin.

Searches of vehicles, warrantless searches, vehicle stop and frisk

Officer must possess a reasonable belief that an automobile's driver and/ or it's occupants are engaged in criminal activity (e.g. traffic infraction) in order to justify stopping them

Searches of vehicles, warrantless searches, vehicle stop and frisk, reasonable belief standard

When an officer approaches a stopped and occupied vehicle, they may stop and "frisk" inside the vehicle's passenger compartment other places where a weapon may be hidden if the officer:
1) reasonably believes a person in the vehicle is dangerous
2) reasonably believes the person may quickly obtain a weapon

Searches of vehicles, warrantless searches, vehicle stop and frisk; permissible observations

Incident to a stop. Observe a vehicle's exterior, take note of any peculiar orders, reocrd any openly visible VIN, may enter the vehicle to view a concealed VIN.

Searches of vehicles, warrantless searches, when vehicle is allowed incident to lawful arrest

When a officer lawfully arrests a person who occupies a vehicle, officer may search passenger compartment and any containers that may contain a weapon or contraband. Does not include a vehicle's trunk, must be actual custodial arrest or occupant.

A officer who arrests a vehicle's occupant for a traffic offense may only search the vehicle's interior incident to the arrest if either:
1) when the search occurs, the arrestee is unsecured and within arm's reach of the vehicle's passenger compartment or
2) it is reasonable for the officer to believe that evidence related to the offense for which the occupant is contained in the vehicle's passenger compartment

Vehicle search without arrest or warrant, motor vehicle warrant exception

A valid stop does not provide grouns for a vehicle search. Vehicle may be searched either based on consent to search or if probable cause exists that the vehicle contains an item subject to seizure.

Vehicle search without arrest or warrant, option to seize vehicle

The officer may seize a vehicle and obtain a search warrant before conducting a search.

Vehicle search without arrest or warrant, option to seize vehicle: Scope of search

All parts of the vehicle and its contents that may conceal the object of the search. (ie, if you are looking for a TV, you cannot look in containers that are smaller than a TV)

Vehicle search without arrest or warrant, applicability to mobile homes and other vehicles

Motor vehicle exception to apply to a motor home. Court must consider the following factors:
1) whether the motorhome is on blocks
2) Whether the mobile home is a licensed vehicle
3) Whether the mobile home is connected to utilities
The motor vehicle exception has been applied to trucks, trailers pulled by trucks, boats, houseboats and airplanes.

Plain view Doctrine

An item or contraband may be seized by an officer from a person's dwelling without a warrant or the person's consent when:
1) the officer sees the item in plain view while lawfully present in the place where the item is located.
2) the item is found in a searchable area that the officer may lawfully access
3) The officer believes probable cause exists to sieze the item, and
4) the basis for the officer's probable cause to believe the item may be seized is "immediately apparent"

Standing to raise constitutional issues: standing to contest search or seizure

A person must have a reasonable expectation of privacy in an item that was seized or in a place that was searched.

Traffic stop and seizure of a person

a passenger in a car subject to a traffic stop by an officer possesses standing to challenge the constitutionality of the stop because such an occupant is not free to the end the encounter with the officer and leave the scene.

Derivative standing to contest search or seizure

Usually, only the person whose rights have been violated by an arrest, search or seizure may challenge that government action.

Confessions

A person's self incriminating statement. May or may not be be made while in legal custody. If a confession is involuntary or made made during a custodial interrogation without proper 5th amendment protections then the confession may need to be suppressed under the exclusionary rule.

Privilege against self incrimination: scope of right to not testify

Right applies to testimonial communications in the context of judicial, congressional and grand jury proceedings. A person does not need to be charged with a crime.

Improper comments or inferences about silence

violates right to due process under the 14th amendment

Right to counsel and identifications

6th amendment- In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.

Requirement of proof beyond a reasonable doubt

the prosecution must show that a defendant is guilt beyond a reasonable doubt, of all elements of a charged defense

Defendant has a right trail by jurors

who are impartial

Guilty pleas

Waive the right of self incrimination and jury trail & confrontation of witnesses. For a please to satisfy due process, must contain a showing, that it was intelligent and voluntary.

Double jeopardy

Protects against 3 abuses
1) second prosecution for same offense after acquittal
2) second prosecution for same offense after conviction
3) multiple punishments for same offense.

Application of double jeopardy

limited to
1) the same government seeks to prosecute 2)the same person 3) for the same offenses arising from a person's unlawful conduct

Under the dual sovereign doctrine...

a person may be consecutively prosecuted in a state court and a federal court for the same offense! Or in courts of 2 different states.

Attachment of double jeopardy protections occurs when

in a trial by a judge either at the beginning of the introduction of evidence or when a witness is sworn.
in trial by jury when the jury swears its oath
when the person pleads guilty, it attaches when a judge accepts the person's plea and enters a judgement of conviction.

Double jeopardy does not apply to the following...

1) hung jury
2) mistrial
3) plea agreement
4) successful appeal

Double jeopardy issues

1) different offenses require proof of different elements
2) Motion for mistrial generally waives double jeopardy
3) Double jeopardy does not attach to a defective indictment
4) retrial is not precluded when a jury cannot acquit or convict
5) Dismissal of charges with prejudice bars a retrial; w.o prejudice does not

Exclusionary rule

Prevents the prosecutions admission at trial of evidence gathered in violation of the 4th, 5th & 6th amendments.

Please allow access to your computer’s microphone to use Voice Recording.

Having trouble? Click here for help.

We can’t access your microphone!

Click the icon above to update your browser permissions above and try again

Example:

Reload the page to try again!

Reload

Press Cmd-0 to reset your zoom

Press Ctrl-0 to reset your zoom

It looks like your browser might be zoomed in or out. Your browser needs to be zoomed to a normal size to record audio.

Please upgrade Flash or install Chrome
to use Voice Recording.

For more help, see our troubleshooting page.

Your microphone is muted

For help fixing this issue, see this FAQ.

Star this term

You can study starred terms together

NEW! Voice Recording

Create Set