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49 terms

Law midterm #II

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what is the holding in Atwater v. City of Lago Vista?
The 4th amendment doesn't forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seat beat violation, punishable only by a fine
Which acts by a law enforcement officer would not be a seizure of a person?
The police asking question of people on the street to gather general information; police boarding a bus and asking questions that a person is free to refuse to answer; police riding alongside a person "to see where he was going
why do roadblock to control the flow of illegal aliens not need much protection under the 4th amendment?
they are not highly intrusive and there is a strong governmental interest involve
whose perception determines whether a person has been seized?
whether a reasonable person viewing the particular police conduct as a whose and within the setting of all surrounding circumstance would have concluded police restrained a person's liberty so that he was not free to leave
what are the two types of seizure?
Actual and constructive seizure
what must a police officer present to a magistrate to obtain an arrest warrant?
a complaint must be filed before magistrate/ judge showing P.C. for arrest of accused
An arrest warrant which has a detailed description of suspect but does not have the suspect's name is known as what?
John Doe Warrant
in general before serving or executing an arrest or search warrant at a residence, the officers must do what?
Knock and announce
after a lawful custodial arrest, the person arrest is subjected to a to what?
a full body search
the use of force is governed by what?
1. Constitution of U.S. particularly the due process and cruel and unusual punishment 2. state law usually the penal code which defines when an officer may legally use force 3. judicial decision, if any specifying type of force can be used and when 4. departmental rule or guideline
search and seizure of things are governed by what?
4th amendment
What happens if an officer encourage a private citizen to search his neighbor's house for a stolen TV?
evidence is not admissible if police participated in, ordered, or encourage X to make the search
What are the recognized exceptions to the search warrant requirement?
searches incident to lawful arrest, searches with consent, special needs beyond law enforcement, exigent circumstances, administrative searches and inspections, stop and frisk, motor vehicle
what are the common factor in all special needs searches?
school searches, searches of probationers and parolees, and airport searches
How do search warrants differ from arrest warrants?
Search warrant: officer looks for item to be used as evidence, If not served, search warrant usually expire after a period of time specified, some jurisdiction limit the execution of warrant to reasonable hours
Arrest Warrant: officers seeks to arrest suspect for detention, doesn't expires unless recalled by court that issued it, maybe executed at time unless exceptions are specified by law
What is the general rule regarding how searches and seizures can be made?
General rule is the searches and seizures can be made only with a warrant. Warrantless searches and seizure are exceptions to the general rule.
which of the following is mere evidence
suspect's clothing containing bloodstains of victim, suspect's mask, shoe, or wig- providing there is P.C. to believe that the item is related to criminal activity
May search warrant issue to search property belonging to person not themselves suspected of crime?
searches are permissible as long as P.C. exists to suspect that evidence of someone's guilt or other items subject to seizure can be found
A search warrant is issued by magistrate on the basis of what document signed and prepared by a police officer?
Affidavit
Is a stop by a police officer for no reason or without any justification legal?
NO some type of justification is necessary for a valid stop
Under the 4th amendment which of the following is not an automatically authorized police action following a valid routine traffic stop?
search the vehicle
What is an exception to the usual rule requiring individualized suspicion before stopping a vehicle?
Roadblock
What are the prerequisites for the valid inventory search of a motor vehicle?
vehicle impoundment
Which of the following is not a constitutionally valid type of roadblock?
Roadblocks to detect criminal wrongdoing
What are the three factors adopted in the balancing test for constitutionality in sobriety checkpoint?
1. the gravity of the public concern served by the seizure 2. the degree to which the seizure advances the public interest 3. the severity of the interference with individual liberty
what is the test for validity in pretext stop?
court in effect ruled that whether ordinarily the officers "would have" made the stop is not the test validity instead the test is whether the officers "could have" made the stop
during the issuance of a traffic citation, may the officer search w/o a warrant or consent?
search during issuance of a traffic citation violates 4th armament unless there is consent or P.C.
Generally, police may do what after a valid stop of vehicle?
order driver and passengers to get out of vehicle, ask driver to produce required documents, question the driver and passenger, locate and examine VIN, seize items in plain view, searches based on reasonable suspicion, and search the passenger compartment for weapon
an officer makes a valid stop of an car. The officer has reasonable suspicion that suspect is armed and dangerous. What may officer do?
officer may conduct a brief search of passenger compartment even if motorist is no longer inside the car
What are the factors in determining whether an area is part of the open field or curtilage?
1. proximity of the area to the home 2. whether the area is in an enclosure surrounding the home 3. the nature and use of area 4. the steps taken to conceal the area from public view
Can police may take advantage of the abandonment doctrine if it was caused by illegal police conduct?
no
What are the two basic factors in determining whether property is abandoned or not?
1. where the property is left 2. intent to abandon property
Definition of plain view doctrine?
item within sight of an officer who is legally in the place from which the view is made may properly be seized w.o a warrant as long as such item are immediately recognizable as subject to seizure
The definition of the open fields doctrine
states that item in open fields are not protected by 4th amendment guarantee against unreasonable searches and seizures, so they can properly be taken by an officer w/o warrant or P.C.
If property is left in plain view, an open field or abandoned, any police search or seizure of the property is not fully covered by the Fourth amendment?
No 4th amendment
Which of the following is not generally considered a part of curtilage?
Residential yards, Fenced areas, and Apartment house
"the area to which extends the intimate activity associated with the 'sanctity of a man's home, and the privacies of life" is as what?
Curtilage
The plain view doctrine requires what?
The officer must not do anything illegal to get to the spot from which he or she sees the item in question
what are the three basic requirements for a place view search and seizure?
officer must have gained awareness of the item solely by sighting it officer must be in that physical position legally it must be immediately apparent that it' seizable item
which of the following is a factor in determining whether, in the totality of the circumstances, the suspect's due process right have been violated during a lineup?
witness's opportunity to view the criminal at the time of the crime, witness' degree of attention at the time, accuracy of any prior description given by the witness, the level of certainty demonstrated by the witness, length of time between the crime and the identification
Does privilege against self-incrimination apply to identification procedures?
No because the privilege applies only to testimonial or communicative rather than physical evidence
why is a suspect not entitled to Miranda warring under the 5th amendment right not to incriminate oneself before being put into a lineup
the fifth armament right not to incriminate oneself protect only against self-incrimination that is testimonial or communicative rather than physical
due process requires that identification procedure to be what?
Fair
which of the following identification procedure is generally the most likely to be suggestive?
Show-up
Which constitutional right during a lineup is dependent upon whether formal charges have been filed or a criminal prosecution has begun?
right to counsel
which of the type of evidence has the strongest scientific foundation?
DNA
Assuming there is no questioning of suspect, and the suspect appears voluntarily at the procedure, which of Constitutional right is the only one that applies at all such lineups, show-ups, and photographic identification procedures, no matter when they occur?
unreasonable searches and seizure, right to due process, right to counsel
what is an identification procedure called that involves only the suspect and the victim?
show-up
Do claims of unreasonable search and seizure in pretrial identification procedures generally succeed?
are few and when raised don't succeed