Arrest, Search and Seizure
Terms in this set (76)
What is the one thing that an officer must have to conduct a full search with or without a search warrant?
What is the General Rule regarding a search?
1.Officers need a search warrant to conduct a search and seizure, unless a specific exception applies.
2. A warrant-less search is presumed to be unreasonable, and the burden of establishing that the search was lawful falls on the state.
any government violation of a person's reasonable and justifiable expectation of privacy.
the taking of property or the restraint of a person's freedom.
This exist where the facts and circumstances known to the officer, based on reasonable and trustworthy information, would lead a reasonably cautious and prudent person to believe that the search would produce evidence of an offense.
may by based on hearsay
cannot be bolstered by the results or fruits of the search
must always exist for a search and seizure, whether a search warrant is used or not
Identifying factors used to establish Probable Cause
High crime area
Time of day/night
Location of suspect(stuck in chimney)
Recognition through senses
A possession of tools/fruits of crime
Physical condition of suspect
Suspicion or mere Suspicion
little or no evidence of an offense
to imagine one guilty or culpable without proof
What can an officer require a person to do based on suspicion?
the officer can investigate by approaching a person to speak with him.
the person is not required to identify himself or answer the officer's questions.
the officer may not detain the person.
3 elements of a temporary detention
reasonable or rational suspicion that some activity out of the ordinary is taking or has taken place.
something to connect the person to be detained with the suspicious activity.
something to connect the suspicious activity to a specific offense.
What can an officer do based on reasonable suspicion?
the officer can detain a suspect based on reasonable suspicion.
the person is not required to identify himself or answer the officer's questions.
the officer may detain the person for a reasonable amount of time while he investigates the possible offense.
if safety concerns, the officer may frisk the person for weapons.
may use terms arrested, confined, imprisoned, in custody, imprisonment.
refers to the actual, forcible detention of a person.
also includes any coercive measures by threats, menaces or the fear of injury, whereby one person exercises control over the person of another and detains him within certain limits.
the kind of control one person exercises over another, not to confine him within certain limits, but to subject him to general authority and the power of the person claiming such right.
a pat down of the other clothing of a person for a weapon
Mapp vs. Ohio
Holding: any evidence seized in violation of the 4th Amendment cannot be used in criminal prosecution of the accused.
The 4th Amendment applies to the states.
Silver Platter Doctrine
Prior to Mapp, federal prosecutors could not use evidence illegally seized by federal agents.
they could use evidence illegally obtained by other agencies since the discovery of the evidence was not done by federal agents.
Mapp ended the "silver platter" doctrine
Under Mapp, all Government agencies must follow the 4th Amendment.
Fruits of the Poisonous Tree Doctrine
if evidence obtained as the result of an illegal search and seizure leads to additional evidence, the additional evidence is tainted and will be suppressed.
Texas Exclusionary Rule
evidence illegally obtained by an officer or any person is not admissible in a criminal case against the accused.
Exception to the exclusionary rule
exception: there is a good faith exception if evidence was obtained by an officer acting in objective good faith reliance upon a warrant issued by a neutral by a neutral magistrate based on probable cause.
the cases involve warrants that were technically defective.
the Texas statute has incorporated the good-faith warrant exception as well.
the right to complain about a search and seizure based on whether that person had a legitimate expectation of privacy
When does standing generally apply to a defendant?
have lawfully been on the premises at the time of the search.
have a proprietary or possessory interest in the premises: or
have possession of the evidence when it is seized, if the evidence is an essential element of the offense.
Basis of a search by a School Official
the school official must have reasonable grounds to believe a search will reveal evidence that the student is violating the law or school rules.
the scope of the search must be reasonable in light of the nature of the infraction, age of students, etc.
is a written order issued by the proper magistrate and directed to a peace officer, commanding the peace officer to search for listed property or thing and to seize the same and bring it before the magistrate.
What 2 documents make up the search warrant?
What are the 2 types of search warrants?
Regular Search Warrant
Evidentiary Search Warrant
What controls the issuance of a search warrant?
What are the 5 parts of the affidavit?
description of the place to be searched.
description of the property to be seized.
description of the person in control of premises.
allegation that a law has been violated.
facts showing probable cause.
3 ways an officer can establish the basis of probable cause for a search warrant.
facts entirely within the affiant's personal knowledge.
facts known by the officer combined with a tip or information provided by an informant.
facts provided entirely by an informant, either named or unnamed.
What independent steps should an officer take to ensure reliability if he relies on informant or other source as the basis for probable cause in a search warrant?
officers should take steps to corroborate by independent investigation information provided by the informant.
this information should also be stated in the affidavit.
Aguilar v. Texas
Supreme Court overruled Aguilar in 1983 with gates v. Illinois. But it still provides ways to show the credibility of an informant.
Gates v. Illinois
The judge looks at the " totality of the circumstances" , the whole picture provided by the facts in the affidavit.
The judge makes a common sense decision on whether there is sufficient probable cause to believe that the contraband or evidence will be found at the location named in the search warrant.
2 prong test does Aguilar use?
1. basis of the informant's knowledge
2. the reliability or credibility of the informant
General Rule contained in the actual Search Warrant
must run in the name of "The State of Texas";
identify what is to be seized and the place to be searched;
command the peace officer of the county to search;
dated and signed by the magistrate
How much time does an officer have to execute a search warrant?
3 whole days
What is the jurisdiction of a city police officer with respect to executing a search warrant?
What searches are prohibited under the language of the federal and state constitutions?
What is the presumption regarding a warrantless search?
a warrantless search is presumed to be unreasonable.
the state has the burden of establishing that the search was lawful.
Examples of interest balanced by the court when analyzing whether a search was lawful.
need for effective law enforcement
an individual's reasonable expectation of privacy
How do the courts interpret a search based on an exception?
What are 12 exceptions?
Stop and Frisk
Incident to arrest
Vehicle or mobile exception
Plain view or open view
Public place or public view
Administrative regulatory search
Substance subject to chemical breakdown
What groups of persons , as a general rule, cannot give consent?
The General Rule regarding whether a third party can give consent to search another person's property or premises.
a third party may consent to a search of common property over which he has access and /or authority.
When is the consent valid?
when given freely and voluntarily
not under duress or coercion
no misrepresentation or deception
court looks at all the facts
Basis for a temporary detention under Terry v. Ohio
Officers may temporarily detain a suspect based on reasonable suspicion.
Detention is not an arrest.
is a legal standard that a person has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences.
more than a hunch or mere suspicion
the officer must be able to articulate specific facts which, in light of his experience and general knowledge, taken together with rational inferences from facts, reasonably justify detention.
Difference between Probable Cause and reasonable Suspicion?
reasonable suspicion is less than probable cause.
it is the basis for an investigatory or Terry stop by the police and requires less evidence than probable cause, the legal requirement for arrests and warrants.
What is the basis for a Terry Frisk?
U.S. v. Mendenhall regarding consent
The respondent's were not violated when she voluntarily went with 2 DEA agents to their office in the airport.
Based on the totality of the circumstances, consent was valid.
Florida v. Royer
based on the totality of the circumstances, the respondent did not freely and voluntarily give consent for a search of his luggage at the airport by police.
What is the scope of the frisk?
Pat-down for weapons only.
Pat-down is a limited search of the outer clothing of a suspect for weapons.
If an officer feels an object that reasonably could be a weapon, then the officer can reach under the outer clothing.
Not a general exploratory search for evidence.
May "frisk" immediate area around person.
May frisk the passenger compartment of vehicle for weapon.
Not the trunk
Not the locked glove box
Not locked containers inside the vehicle.
How long may officers detain a person during a Terry stop?
reasonable amount of time
What are 2 factors that determine whether the length detention was justified?
the number of suspects or offenses ; waiting on backup;
is officer diligent in pursing offense in question.
What is the basis for a search incident to arrest?
A Valid Arrest
What is the analysis the court makes when looking at a search involving a stop and frisk?
was there reasonable suspicion to justify the detention?
were there safety concerns to justify the frisk.
What may officers seize incident to arrest?
instruments of crime
fruits of the crime
mere evidence that shows a person's guilt
When must a search incident to arrest be conducted?
it must be contemporaneous to the arrest.
This means it must happen during the process of making the arrest or within a reasonable time after the arrest is completed.
What are 2 justifications in Arizona v. Gant?
To preserve evidence
What is the scope of the search incident to arrest?
in unusual circumstances (body cavity)
may search the area within the arrested person's immediate control.
need a search warrant or another exception to search closed or concealed areas in the room of arrest that are not within the wingspan or immediate area of the arrestee.
What is the holding in Chimel v. California?
allows the search of the arrestee's person and the area within his immediate control.
What is the holding in New York v. Belton?
allows the search of the passenger compartment of a vehicle incident to the arrest of the occupant of the vehicle.
What are general rules regarding a traffic stop?
may order driver and passengers out of the vehicle
a traffic stop generally does not justify a search of the vehicle
may always seize items in plain view or justify other exceptions/search warrant based on what develops during the stop.
Can an officer arrest a person for traffic violations?
YES, but cannot arrest for speeding or open containers
What is the basis for the vehicle or mobile exception?
3 purposes of the inventory search
protect owner's property
protect city from claims
basis of the inventory?
What is the holding of Autran v. Texas
Case held that officers could not search a closed container found in a vehicle during an inventory.
the 2 requirements that must be met for plain view to apply?
the officer must have a legal right to be there.
it must be immediately apparent to the officer that the object is contraband or evidence of a crime. NO TOUCHING!!!
refers to the area immediately surrounding and adjacent to a home. Like the home, it is protected by the 4th Amendment.
What are the 5 basic situations when an emergency search may be conducted?
Loud noise/ Suspicious odor
Prevent the loss or destruction of evidence
Report of crime or injury
3 criteria's that must be met to allow a regulatory administrative search?
substantial governmental interest for regulatory scheme
searched are needed to further regulatory scheme
regulatory scheme is certain and regular in application
What is the basis for a seizure under plain touch?
Must be conducted within the bounds of a normal frisk, so once the officer determines an object is not a weapon, he is no longer entitled to use Terry frisk or plain touch.
The -------- or higher may issue a second evidentiary search warrant to search the same person, place, or object in the same criminal investigation.
District Court Judge
Mapp v. Ohio, the Supreme Court solidly established?
The exclusionary rule
Under the Texas exclusionary rule, evidence is not suppressed if an officer had?
a good faith reliance on a technically defective search warrant
The test for the legality of a search by a public school administrator is?
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