MBE CRIMINAL PROCEDURE: Arrests, Searches & Seizures

4th Amendment Protection

Protects people to be secure from unreasonable searches and seizures in their home by the government; and states that warrants must be supported by probable cause

Key 4th Amendment Questions

1) Was there a search or seizure? 2) Was the search or seizure conducted by a government actor? 3) Was there probable cause? 4) Was there a valid warrant? 5) Was there an exception to the warrant requirement?

Private Individual Triggering 4th Amendment

If the individual acted at the direction of a government agent or pursuant to an official policy

Seizure Definition

When an officer, by show of physical force or authority, intentionally restrains the liberty of the citizen so that they are not free to leave (objective standard). In this context, a seizure is also called an arrest.

Seizure Determination Factors

Basic Rule: If a reasonable person in D's position would have believed he was not free to leave, it's a seizure. Factors include: 1) Threatening presence of several officers; 2) Display of weapons; 3) Physical touching of person; and 4) Indication that compliance with request is an order

Valid Arrest Requirements

Probable cause; and warrant if suspect is in their own home or another's home absent consent or exigent circumstances

Arrest Warrant Exceptions

If: 1) Arrest is in a public place; 2) Arrest is for a misdemeanor punishable by a fine and police witnessed the misdemeanor; 3) Exigent circumstances exist; or 4) Police had consent to enter D's home or third party's home

Illegal Arrest Prosecution

No, as long as police have probable cause, they may prosecute and detain D even if the arrest was illegal. However, evidence seized during an illegal arrest may be suppressed at trial.

Police Automobile Stop

Must have reasonable suspicion of illegal activity, unless the stop is at a checkpoint.

Citizen's Arrest

If: 1) A felony has been committed; and 2) Citizen has reasonable belief that the person being arrested committed it. Note: Can be used as a defense if citizen used reasonable force to detain until police arrived.

Katz Test for Search

1) Did the defendant have a reasonable expectation of privacy?; and 2) Was the expectation one that society recognizes as reasonable? If yes, the search is protected by the 4th Amendment.

Reasonable Expectation of Privacy

When: 1) An individual has a subjective expectation of privacy in the thing searched; and 2) Expectation is one society recognizes as reasonable. Viewed in totality of the circumstances.

No Reasonable Expectation of Privacy Examples

Objects knowingly exposed to the public; smells emanating from personal belongings; car VIN #'s; handwriting samples; voice exemplars; DNA samples; bank records; phone call records; conversations with government informants; open fields; airspace above property higher than 400 feet; naked-eye observations of private property; and discarded property

4th Amendment Home Definition

Home/dwelling itself; and curtilage (area surrounding the home). Whether or not area is curtilage depends on: 1) Proximity of the area to the home; 2) Whether the area is within an enclosure surrounding the home; 3) The nature and uses to which the area is put; and 4) Steps taken by the resident to protect the area from observation by passersby

Open Fields as Curtilage

No, even if the area is fenced and has "No Trespassing" signs.

Overnight Guest Privacy Expectation

Yes, as long as the premises aren't being used for an illegal purpose

Hotel Guest Privacy Expectation

Yes. A hotel clerk cannot consent to the search.

Third Party Doctrine

An individual who freely shares information with a third-party (e.g. banks, phone companies, or internet service providers) has no reasonable expectation of privacy for that information. Exception: Cell Phone Tracking Data (Carpenter v. United States)

Aerial Surveillance Search

If the surveillance is at a height greater than 400 feet, D likely has no reasonable expectation of privacy and thus no search occurred.

Tracker on Vehicle as Search

Yes, if police physically intruded on D's property to install the tracker.

Animals Search (Drug-Sniffing Dogs)

Yes, if it intrudes upon a constitutionally protected area (i.e. home, curtilage, person)

Valid Warrant Requirements

Warrant must be: 1) Based on probable cause; 2) Supported by oath or affidavit; 3) Describe with particularity the thing/person to be seized and place to be searched; and 4) Be issued by a neutral and detached magistrate

Warrant Scope Limitation

Only the premises, person, or items described in the warrant

Warrants for Each Person

Yes, there must be an independent basis to search each person; just because they are in the same room doesn't mean the search is valid (absent exigent circumstances). Note: Police can detain subjects not included in the warrant, but they cannot search them.

Warrant Requirement Exceptions (ESCAPIST)

1) Exigent circumstances; 2) Searches incident to lawful arrest; 3) Consent; 4) Automobile search; 5) Plain view search; 6) Inventory search; 7) Special needs; 8) Terry stop and frisk

Probable Cause Existence

If the quantity of facts and circumstances would lead a reasonable person to conclude that either: 1) The individual in question has committed a crime; or 2) Specific items related to criminal activity can be found at that particular location

Probable Cause Facts

Facts based on either: 1) Verifiable and reliable information from an informant; 2) Seized evidence; or 3) Observations by law enforcement (police are presumed to be reliable sources)

Informant Tip Reliability

Courts weigh: 1) The credibility of the information; 2) The reliability of the informant; 3) Corroboration by the police; and 4) An informant's declaration against interest

Invalid Warrant Remedy

Evidence obtained during an unlawful search will be inadmissible pursuant to the Exclusionary Rule. Exception: Evidence is not excluded if police officers relied upon the warrant in good-faith.

Good-Faith Exception Non-Application

If either: 1) No reasonable officer would have relied upon the warrant; 2) The warrant is facially defective; 3) The officer lied or misled the magistrate to obtain the warrant; 4) The magistrate issuing the warrant was not neutral and unattached; or 5) The warrant was improperly executed

Warrant Execution

Only the police may execute a warrant. Must be executed promptly while probable cause still exists.

Knock and Announce Rule

Absent exigent circumstances, the police must knock and announce their identity before entering a home to execute a warrant

Knock and Announce Exception

When police have reasonable suspicion that doing so will: 1) Endanger officers; 2) Lead to the destruction of evidence; or 3) Lead to flight of the suspect

Knock and Announce Violation

Still admissible. Exclusionary Rule does not apply.

Exigent Circumstances Exception

Police may search without a warrant if waiting to obtain a warrant will result in imminent: 1) Destruction of evidence; 2) Escape of the accused; or 3) Danger to police or others in the area. Note: Not applicable if police create the exigent circumstances so they can bypass the warrant requirement

Hot Pursuit Police Actions

If the suspect is a felon, the police may: 1) Enter and search a private dwelling; 2) Conduct a warrantless arrest of the suspect on the premises; and 3) Seize any contraband in plain view

Warrantless Blood Tests for Drunk Drivers

Yes, only under the exigent circumstances exception if: 1) BAC evidence is dissipating ("literally disappearing by the minute") and; 2) Some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application

Terry Stop (Stop and Frisk)

A brief investigatory seizure by the police when there is reasonable suspicion of criminal activity.

Reasonable Suspicion

Reasonable belief based upon articulable information (more than a mere hunch) that the suspect has or is about to engage in illegal or criminal activity

Terry Stop Duration

Time necessary to confirm or deny the police officer's suspicion

Frisk Permission

If they have reasonable suspicion that the suspect is armed and dangerous, the officer can conduct a limited search of the suspect

Frisk Scope

Police are only allowed to do a quick pat-down of the suspect's outer clothing for weapons. Cannot manipulate items.

Plain Feel Exception

If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon

Plain-View Doctrine

A warrant is not required to seize an item if: 1) The police are on the premises lawfully when they observe the item; and 2) The incriminating nature of the item is immediately apparent (police may not move objects to get a better view)

Smells under Plain-View Doctrine

Yes, if police have probable cause to believe the smell is from contraband, they can search the item where the odor is coming from

Search Incident to Lawful Arrest (SILA)

Warrantless search of an arrestee and the area within their immediate control (wingspan, lunging area) during a lawful arrest

Accomplices in Home Police Actions

The police can conduct a cursory protective sweep of spaces where people may hide (closets, under the bed, etc)

SILA Duration

Contemporaneous with or immediately after the arrest

SILA Pockets and Containers

Yes, as long as they are within the suspect's reach and large enough to hold contraband or weapons

SILA Vehicle Search

Yes, if: 1) Arrestee has access to the vehicle compartments; 2) There is a reasonable belief arrestee may destroy evidence or pose a danger to the officers; and 3) There is reasonable belief that the vehicle contains evidence of a crime

Inventory Search

Constitutional, warrantless search of an arrestee's belongings once they are jailed

Automobile Exception

Police may search an automobile and persons within it without a warrant as long as they have probable cause. Police can search any locked containers in the vehicle and the trunk if the areas could reasonably hold the evidence sought (i.e. have probable cause to do so). Also applies to motor homes, boats, and airplanes.

Automobile Exception for Immobile Vehicles

No, because the danger of the evidence being removed is significantly diminished

Permissible Checkpoints

1) Sobriety checkpoints; 2) Checkpoints at or near the border; and 3) Checkpoints to obtain information about a recent crime. Note: Checkpoints to test for drugs are not valid

Crime Information Checkpoint Requirements

1) Checkpoint's primary purpose is help law enforcement investigate a crime and advance a public concern; 2) The cars are stopped in a neutral manner; and 3) Checkpoint minimally interferes with 4th Amendment rights

Border Searches

Yes, officials may search anyone at or near the border (including international airports and ports) in a routine manner without a warrant, or probable cause, or reasonable suspicion

Consent Exception

If a person voluntarily consents to a search, no warrant or probable cause is needed. Whether or not a person has consented is determined in light of the totality of the circumstances.

Invalid Consent

Consent that was gained by: 1) Asserting a fake warrant; or 2) An unlawful police threat (a threat to do something that the officer has no authority to do)

Refusing Consent Information Requirement

No

Consent Search Scope

The person who consented to the search. Exceeding the scope will make the entire search invalid.

Consent Authority

Any person who has joint control or use of shared premises (e.g. roommate, spouse)

Third Party Consent Authority

Yes, if: 1) The third party owns or occupies the home; or 2) The third party and D jointly own or occupy the home and D is not present (valid even if D had previously objected at another time). Note: If D is home and objects to the third party giving consent, the third party consent is not valid

Landlord Consent

No

Employer Consent for Employee's Private Storage

No

Administrative Search

Search carried out by regulatory bodies to enforce compliance with administrative regulations and/or health and safety codes

Administrative Warrant Requirement

Generally required for administrative fire, health, or safety inspections of residential or private commercial property.

Administrative Warrant Issuance Requirements

Either: 1) Probable cause that an administrative violation has occured; or 2) Evidence that establishment has been selected to be inspected. Note: Probable cause standard is less stringent than for criminal investigations

International Mail Opening

Yes, as long as the police have probable cause to do so

Administrative Search Criminal Evidence

Yes, as long as the search was executed pursuant to a warrant, or the search was a valid, warrantless search

Public School Student Searches

1) Police have a moderate chance of finding contraband (lower bar than probable cause); 2) Search methods are reasonably related to the purpose of the search; and 3) Search is not excessively intrusive

Exclusionary Rule

Holds that evidence obtained in violation of D's 4th, 5th, or 6th Amendment rights is inadmissible at criminal trials to prove D's guilt

Exclusionary Rule Non-Application

1) Grand jury proceedings; 2) Civil proceedings; 3) Administrative proceedings; and 4) Sentencing, bail, and parole hearings

Exclusionary Rule Exceptions

Evidence may still be admissible if it falls underneath these exceptions: 1) Independent source: Evidence is discovered by an independent source; 2) Attenutation: Relationship between the primary taint and discovery of evidence is sufficiently attenuated as to break the causal chain; 3) Inevitable discovery: Evidence would have been inevitably discovered through legal means; 4) Good faith: Exists when police officers were acting in good faith on a warrant that was later declared invalid; 5) Impeachment: Illegally obtained evidence may be used to impeach D at trial

Fruit of the Poisonous Tree Doctrine

Holds that any evidence obtained from an illegal search is tainted and thus subject to the exclusionary rule unless an exception applies.

Illegal Confession Physical Evidence

Yes, physical evidence obtained from a confession that violated Miranda is still admissible at trial. Ex. During an illegal interrogation, D tells police that a gun is hidden under the bed. The gun is still admissible at trial.

Wiretaps

Monitoring of electronic communications; require a warrant (except for certain national security purposes)

Wiretap Warrant Requirements

The warrant must: 1) Demonstrate probable cause; 2) Name the person going to be wiretapped; 3) Contain specific details about the conversations that will be overheard; 4) Explain how the wiretap will be terminated; and 5) Be limited to a brief