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Criminal procedures and evidence Ch 9-12
Terms in this set (71)
What is the essential ingredient for all valid consent to search?
The person voluntarily waives Fourth Amendment rights and allows officer to search
What is the main advantage of a consent search for law enforcement personnel?
-Prohibits consenting person from later protesting the search
-Evidence is admissible even without a warrant and probable cause
What is the standard of proof for a showing in court that consent to search was voluntary?
Preponderance of evidence by the prosecutor
What does courts use to determine voluntariness?
Courts use the totality of circumstances test to determine voluntariness
To establish that consent was valid, the prosecutor must show that the consenter had ______authority _____ and that he/she gave consent ___voluntarily___________. Must the prosecutor also show that the consenter was informed by the police of his/her right to refuse consent? No
No Probable cause necessary
If a suspect is injured while resisting arrest, what would be the best strategy for officers to obtain a valid consent from the suspect?
Advise the person that they do not have to consent
Can consent obtained through threat of force be deemed voluntarily given?
Does voluntary consent to search have to be given verbally?
Do police need to tell a person that they are "free to go" before a consent can be deemed voluntarily given?
Is the voluntariness of consent affected by the physical, mental or emotional condition and the intelligence or educational level of the person given consent?
Does a landlord have implied actual authority, apparent authority, or no authority to consent to a search of a tenant's premises or a seizure of the tenant's property during the period of tenancy?
who is legally able to give valid consent to search
the person whose privacy will be invaded
-Does that person have to be the same as the person being accused of a crime? No
-Does that person have to be the person who owns the property? No
-Does that person have to be the person whose property is involved? No
Regarding third-party consent, what is the difference between actual common authority and apparent common authority?
-Actual: person has authority to consent
-apparent : police reasonably believed the person had actual authority to consent
What is one of the best ways to avoid a challenge to the validity of a consent search?
written consent form
May a person who has consented to a search limit their consent?
If a person is drunk is she/he automatically too drunk to give valid consent?
If a person gives consent to search an area for small objects, does that include consent to search containers in that area which might contain these objects?
If a person in custody is uncooperative or evasive, does that generally indicate that the person's consent is voluntary or involuntary?
May a person specifically authorize another individual to consent to a search of the person's property?
Is the plain view doctrine a matter of search? Why?
-No, if police are lawfully in a position from which they view an object, if its incriminating character is apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant
-Plain view is matter of seizure
If during a search an officer observes in plain view evidence of a separate crime other than that of the offense being investigated, the officer must have what?
must have probable cause to believe the item is contraband or evidence of a crime.
Why is "police convenience" deemed to be a reasonable justification for allowing evidence to be seized pursuant to plain view?
-A reasonable justification for seizing in plain view
-No 4th Amendment violation
What is the first and primary requirement for an officer to seize evidence under the plain view doctrine?
Legal right to be there
May a law enforcement officer seize evidence observed in plain view using a flashlight to illuminate the interior of a vehicle or premises?
-Night vision? -yes
-binoculars ? - yes
-Thermal imaging? - no
May a law enforcement officer seize evidence observed in plain view only after changing position to see better?
Is there a "murder scene" exception to the search warrant requirement?
Rather than simply seizing contraband, sometimes law enforcement will monitor the container on its journey to the intended destination, in order to identify the person delivering the contraband when the person takes possession of and asserts control over the container. What is this called?
What is the "prior valid intrusion" requirement?
-Must have valid justification for going into a zone of privacy
-Was legal for officer to intrude on that place prior to observing the evidence
-Essentially the same as "being in a place he/she is lawfully entitled to be"
May officers seize items not related to the crime they are investigating if they have handled, moved, and manipulated the items to make a determination that the evidence is seizable?
If an officer lawfully pats down a suspect's outer clothing during a Terry stop and feels an object, the identity of which is readily apparent to the officer as evidence or contraband, may the officer seize the object?
-Plain touch or feel
What is the most important reason the searching officer must carefully note all the circumstances surrounding the giving of consent and/or the seizing of evidence by plain view?
So the prosecutor can meet the burden of proving valid consent or that the requirements of plain view are met
Does a person have a lesser expectation to privacy in a car than a residence? Why?
-An automobile travels public thoroughfares where its occupants and contents are open to view
-It seldom serves as residence or permanent place for personal effects
-It is required to be registered and its occupants is required to be licensed
-It is extensively regulated with respect to the conditions and manner in which it is operated on public streets and highways
-It periodically undergoes an official inspection
-It is often taken into police custody in the interests of public safety
What is the Carrol doctrine?
Holds that warrantless search of a readily mobile motor vehicle by a law enforcement officer who has probable cause to believe that the vehicle contains incriminating items subject to seizure is not unreasonable under the Fourth Amendment
What is the most important consideration today in justifying the search of a vehicle under the Carrol doctrine?
What is the evidentiary standard to be met in order to justify an officer's warrantless stop and search of a vehicle under the automobile exception?
May officers ever search a vehicle which the driver has driven into his driveway and parked in his garage?
May officers ever search a vehicle which the driver has driven into his driveway and parked in his garage?
What part(s) of a moveable vehicle may officers search if they have probable cause that a specific container within the vehicle contains contraband?
May search the entire car and containers
How may police inventory a vehicle which has been impounded?
Follow standard departmental procedures regarding the allowable scope of a vehicle inventory
What are valid reasons to inventory an impounded vehicle?
-Driver has been arrested and taken into custody
-Driver is incapacitated by intoxication, injury, illness, or some other condition
-Vehicle is seized as evidence of or an instrument of a crime
-Vehicle is forfeited pursuant to a state or federal forfeiture law
-The vehicle has been reported stolen
-Driver lacks a valid driver's license or valid proof of insurance
May the police ever conduct a search pursuant to the automobile exception after they have driven the vehicle to a different location?
Under what circumstances would a motor home or RV be considered a vehicle for automobile search purposes? Under what circumstances would the motor home be considered a residence?
-Search of a RV under the automobile exception if the vehicle is being used on the highways or if its readily capable of such use and is found stationary in a place not regularly used for residential purposes
-Factors that would indicate a RV being used as a residence:
--Whether the vehicle is readily mobile
--Whether the vehicle is licensed
--Whether it is connected to utilities
--Whether it has convenient access to public road
May boats and planes also be searched pursuant to the automobile exception to the search warrant requirement?
The scope of a warrantless search of an automobile is determined by what?
Defined by the object of the search and the places in which there is probable cause to believe that it may be found
May an officer seize items of evidence they find while conducting an inventory of an automobile's content?
-May seize contraband or other items subject to seizure observed in plain view
-Under what justifications?
--Impoundment of vehicle by police
In order to use the automobile exception as the basis for a warrantless search, what two things must be true?
-An officer must have probable cause to believe the motor vehicle contains items that are incriminating in character
-The vehicle must be readily mobile such that it is capable of being moved outside the jurisdiction
Will an inventory search be declared unlawful if an officer conducting the search says he/she suspected they would find some contraband during the inventory?
If a vehicle is readily mobile and probable cause exists to believe it contains contraband, must an officer have additional justification such as exigent circumstances in order to search the vehicle?
If an officer has probable cause to search a motor vehicle, may she inspect the passenger's belongings found in the vehicle?
Does the scope of the automobile exception include the trunk of a vehicle recently occupied by the arrestee?
February 2013 Supreme Court decision determined what with respect to a canine "alert" by a well-trained police dog?
A canine "alert" can establish probable cause for the search of the vehicle
In order to search for and seize evidence in open fields pursuant to the "open fields" doctrine, are the police required to have:
-No probable cause required
-No warrant required
-No reasonable suspicion required
Under the "open fields" doctrine, the Fourth Amendment requires police to have a warrant to enter to search extends to "Houses".
Is a private business whose doors are open to the public considered open to entry by the police? Does the term "houses" extend to places of business?
-The term "houses" does not extend to businesses, "houses" means homes (owned, rented, or leased) or any other place in which a person is staying or living, permanently or temporarily.
What is the primary difference between the abandonment doctrine and the plain view doctrine?
-Owner "voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so he could no longer retain a reasonable expectation to privacy with regard to it
-abandonment : location is not protected
What must police show in order to establish that an article or object has been abandoned?
-It was the intent of the suspect to abandon the property
What is the key issue for a LEO about to conduct a search under the open fields doctrine?
The determination of the demarcation line between the area protected by the Fourth Amendment and the open fields
What is the word "house" in the Fourth Amendment interpreted to mean?
homes (owned, rented, or leased) or any other place in which a person is staying or living, permanently or temporarily.
What is "curtilage"
The grounds and buildings immediately surrounding a dwelling house
What areas does the curtilage include?
-Driveways and pathways
When may an officer enter and search the backyard of a multiple-occupancy dwelling without a warrant under the open fields doctrine?
Can search w/o a warrant if its open to use by any passerby
May an officer enter an area of a large apartment building to observe activities and seize contraband she might happen across if the area is commonly used by visitors, businesspersons and delivery people to gain access and move about the building? To enter such an area, must she first have been invited by a resident? Must she have probable cause to enter the area? May she enter any area where incriminating evidence is immediately apparent?
-Common area ok
-Consent not essential
-No probable cause necessary
-May not enter "any area" because officer may not have a valid justification for prior intrusion
What areas are normally accessible in a multiple occupancy dwelling under the open fields doctrine?
What is the standard for seizing items once an officer has entered open fields doctrine?
May seize items if they have probable cause to believe that they are items of an incriminating character subject to seizure
If suspects leave a vehicle and flee it, may officers search it without a warrant? if so, under what theory?
Yes, it was abandoned
What would be considered an intention to abandon an object?
-Unattended for an unreasonable time
-Unprotected in no one's care
-Discarded, even if out of guilt or fear of apprehension
Is curtilage created simply by enclosing any area with a fence
Do Fourth Amendment protections apply to abandoned property?
Does a persons's mere absence from a premises establish abandonment of the premises?
No, unless other factors show that the person intended to abandon the premises
May a LEO search for items of evidence in open fields without probable cause?
What part(s) of a moveable vehicle may officers search if they have probable cause that the vehicle contains a seizable item?
-The scope of the search depends on the object of the search and the places, or locations, where there is probable cause to believe the object may be found
-May search the entire car and containers
Other sets by this creator
Criminal procedures and evidence final
Criminal Procedure and Evidence Ch 7-8
Criminal Procedure and Evidence Chapters 4-6
Criminal Procedure and Evidence Ch 1-3
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