BPOC Arrest, Search, and Seizure (copy)

4th Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

The right of the people to be secure, and protected against unreasonable searches and seizures in their:

1. Persons
2. Houses
3. Papers
4. Effects

No warrants shall issue but upon _____________ ____________ supported by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized

Probable Cause

Heitman v. State 815 S.W. 2d 681

Stands for the proposition that state courts are free to interpret the state constitutional protection against unreasonable searches and seizures

There are ___ classifications of interactions between peace officers are civilians

3

What are the 3 classifications of interactions between peace officers and civilians?

1. Police encounter or contact that is consensual in nature (civilian may decline the encounter)
2. A detention based upon reasonable suspicion
3. An arrest based upon probable cause

A persons is arrested when he has been:

1. Placed under restraint
2. Taken into custody by an officer or person executing warrant
3. By an officer or person arresting without a warrant

Define Restraint per CCP 11.22

The kind of control which one person exercises over another, not to confine him within certain limits but to subject him to the general authority and power of the person claiming such right

(TRUE or FALSE) Custody means under arrest by a peace officer or under restraint by a public servant or under restraint by an agent or employee of a facility that is operated by or under contract with the US

True

How many elements have been used by courts to determine whether an arrest has occurred?

4

What are the 4 elements that have been used by courts to determine whether an arrest has occurred?

1. Intent
2. Authority
3. Actual Seizure
4. Understanding

The subjective _______ of the officer as to whether or not an arrest has occurred will not control the determination of the court. This element is only important when it is conveyed to the person seized, e.g. "you are under arrest" or "you are not under arrest, you are being detained"

Intent

(YES or NO) Referring to an actual seizure, if the person does not obey the officer's commands and allow themselves to be restrained in his/her movement, can the officer physically restrain the person?

Yes

(TRUE or FALSE) An individual DOES NOT need to understand his/her status in the situation when being arrested

False

At the moment of arrest, __________ ____________ ceases to build for what the person was arrested for

Probable Cause

After making an arrest, the person arrested shall without unnecessary delay, but not later than ___ hours, take the person before a magistrate

48

(TRUE or FALSE) The magistrate shall inform the arrested person of his right to retain counsel, his right to remain silent, his right to have an attorney present during any interview with peace officers or attorneys representing the state, his right to terminate the interview at any time, and of his right to have an examining trial

True

Define Examining Trial

A hearing before a judge to determine whether probable cause exists to send a felony case on to the grand jury

If the magistrate is not authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than ____ hours after the person arrested request appointment of counsel, transmit, or cause to be transmitted to the courts or the courts' designee authorized to appoint counsel

24

A recording of the communication between the arrested person and the magistrate shall be made and preserved until when?

1. The pretrial ends
2. The 91st day after the person is charged with a misdemeanor
3. The 120th day after the person is charged with a felony

If an accused fails to appear as required by the order, the judge shall issue a warrant. Once arrested and in admitting the accused of bail, the judge should set an amount __________ that generally set for the offense

Double

When a deaf accused is taken before a magistrate, an interpreter _________ and _________ as provided in Article 38.31 shall interpret a warning required in a language that the accused can understand

Qualified and sworn

The accused, prior to and during the making of the statement ___________, ____________, and ________________ waived the rights set out in the warning prescribed by the magistrate

Knowingly, intelligently, and voluntarily

Not later than the ______ day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under article CCP 38.22

20th

(TRUE or FALSE) No person prosecuted under subsection 37.03 Aggravated Perjury, shall be eligible for probation

True

Per CCP 14.01 Offense Within View: A peace officer or any other person _____ without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace

May

A peace officer ______ arrest without warrant a person the peace officer has probably cause to believe has committed an offense under Sec 25.07 PC Violation of Protective Order or Sec 38.112 Violation of Protective Order issues on basis of sexual assault - If the offense is committed in the presence of the peace officer

Shall

A peace officer making an arrest under this subsection _______, as soon as practicable after making the arrest: Notify a law enforcement agency having jurisdiction where the arrest was made

Shall

There are ___ requirements that need to be met for warantless felony arrested

4

What are the 4 requirements that need to be met for warrantless felony arrests

1. The person who gives the officer information must be credible
2. It must be a felony offense
3. The offender must be about to escape, in other words the threat of escape is both real and imminent
4. There is no time to get a warrant

(TRUE or FALSE) A person who reasonably believes that another has stolen or is attempting to steal property, is privileged to detain that person in a reasonable manner, for a reasonable time, to investigate ownership of the property

True

Senators and Representatives shall be privileged from arrest during session of the Legislature for the following 3 offenses:

1. Treason
2. Felony
3. Breach of the Peace

(TRUE or FALSE) You may arrest a person protected by a protective order

False

A summons shall be served upon a defendant by these 3 ways:

1. Delivering a copy personally
2. Leaving it at his dwelling with some person of suitable age
3. Mailing it to the defendants last known address

(TRUE or FALSE) If a defendant fails to appear in response to the summons, a warrant shall be issued

True

Define Suspicious Circumstances

"The act of imagining or of doubt the apprehension of something without proof or on slight evidence" Anything that leads you to believe that something is not right (not criminal yet)

_________ ________ exists if the facts and circumstances known to the officer would warrant a prudent man in believing that the offense has been committed

Probable Cause

High crime rate area, time of day or night, location, furtive act, abnormal demeanor, or Officer's own knowledge of facts and circumstances applicable to that particular location, person, or situation are known as elements that can be used to establish _________ __________

Probable Cause

There is "Temporary" holding and "Detention" holding. _____________ these definitions, we may say: "Holding a person for a limited time, but who, as yet, is not answerable to a criminal offense"

Consolidating

Reasonable suspicion by a peace officer that some activity out of the ordinary is or has taken place, some indication to connect the person to be detained with the suspicious activity, some indication the suspicious activity is related to a specific offense are elements required for ___________ ____________

Temporary Detention

A frisk is used to protect the ________ of the officer

Safety

Permitted anytime an officer is in contact with another person, and the officer can articulate reasons that he ________ for his ________; whenever an officer has reason to believe (reasonable suspicion) another has a weapon on or about his person that can be used to cause injury or death

Feared and safety

The objective of the frisk is to __________ ___________ that could be used against the officer or others nearby

Locate Weapons

Any evidence found _______ the arrest, or during the search, will not be admissible to prove probable cause

After

What is Illinois v Gates 462 U.S 213 (1983)

A Fourth Amendment case. Gates overruled Aguilar v. Texas and Spinelli v. United States, thereby replacing the Aguilar-Spinelli test for probable cause with the "totality of the circumstances" test

Officers may pat down the entire body, but the ____________ of clothing only at the beginning of the frisk

Outside

Only force necessary to overcome ____________ may be used to frisk

Resistance

A return must be made not later than ___ whole days after a search warrant execution

3

Chimel v California

1969 Supreme Court of the United States case. In Chimel, the Court held that police officers arresting a person at home could not search the entire home without a search warrant, but police may search the area within immediate reach of the person

The automobile exception has two primary elements. What are they?

1. A readily mobile motor vehicle
2. Probable cause to believe the vehicle contains contraband or criminal evidence

Carroll v US 1925

Re-affirmed by US Supreme Court many times. A vehicle can be searched without a warrant if probable cause exists to believe that the vehicle contains contraband. Applies to automobiles, boats planes, and motor homes (motor homes have restrictions)

Michigan v Long 1983

A decision by the United States Supreme Court that extended Terry v. Ohio, 392 U.S. 1 (1968) to allow searches of car compartments during a stop with reasonable suspicion. The case also clarified and narrowed the extent of adequate and independent state ground, allowing U.S. Supreme Court review of state supreme court decisions unless they explicitly appealed to state laws

The 4th Amendment does not protect _______ ___________

Open fields

Define Curtilage

Area of open space surrounding a dwelling which is so immediately adjacent to the dwelling that it is considered part of the house

Once a person grants consent, the person remains in control of the search and may ______ the scope of the consent or _______ it entirely

Limit and revoke

The proof that consent was given voluntarily rests with the state by ____________ of ______________

Preponderance of evidence

(TRUE or FALSE) Each spouse may generally consent to a search of the entire premises; however, officers should note that if both spouses are present and one says no, then the answer is no

True

(TRUE or FALSE) If someone consents to your entry into their home, it DOES give you consent to search the home

False

(YES or NO) Can plain view items be seized upon consent to enter a home?

Yes

Define Abandonment

The surrender, desertion, relinquishment, disclaimer, or cession of property or of rights

(TRUE or FALSE) Written consent is always better than verbal consent

True

A defendant who voluntarily abandons property has no standing to ___________ its search and seizure

Contest

The abandonment of property cannot be prompted by __________ ____________

Police misconduct

Emergency requiring immediate medical or police assistance and fight noises/screams are examples of _________ circumstances

Exigent

There is ___ ___________ to the warrant requirement for crime scenes

No exception

Plain view must have 2 prerequisites, what are they?

1.Officer must be lawfully present to what he/she sees
2.The item's evidentiary or incriminating nature must be immediately apparent

For _______ __________ the officer MUST immediately recognize by the feel of the object, that the object is contraband or other evidence of a crime

Plain feel

Define Inventory

A detailed list of articles of assets containing a designation or description of each specific article

The underlying ______________ of a vehicle must be lawful

Impoundment

(TRUE or FALSE) An inventory is an administrative, caretaking procedure designed to prevent false claims of lost or damaged property being made against a police department and to safeguard the police and others from potential danger

True

The __________ ___________ is conducted to protect the owner's property and to protect police against claims and unknown danger

Inventory search

Evidence obtained after ________ government action will be excluded from evidence

Illegal

In Texas, if an officer executes a warrant issued by a neutral magistrate, and it is later discovered that there was ___________ probable cause in the supporting affidavit, the fruits of the execution of the warrant will be suppressed even if the executing officer knew nothing of the deficiencies

Insufficient

Mapp v Ohio 367 U.S 643 ((1961)

Federal exclusionary rule