Con Crim Pro

Is it constitutional under the Fourth Amendment?

Unreasonable searches and seizures by or on behalf of the government are protected against.

What are the steps to determining if it was constitutional under the Fourth Amendment?

(1) Was there a search or seizure?

(2) Was it by or on behalf of the government?

(3) Was it unreasonable?

Was there a search under the old rule?

One occurs when the government intrudes upon a constitutionally protected area.

Was there a search under the new rule?

One occurs when there is (1) a subjective belief of privacy, and (2) a societal objective recognition of the reasonableness of that belief.

What are the steps to determine if there was a search?

(1) Was the location a constitutionally protected area?

(2) Was there a subjective belief of privacy?

(3) Was the subjective belief objectively reasonable?

Was it a home?

This is clearly protected by the Fourth Amendment.

Was it a dog sniff at one’s home?

A dog sniff within the curtilage is a search (Jardines).

What does Jardines say?

A dog sniff within the curtilage is a search, and a warrant is required.

How is the curtilage determined?

Dunn factors:

(1) proximity to home;

(2) whether area is enclosed;

(3) purpose & use of area;

(4) steps taken to protect against observation.

Can police generally enter a home's curtilage?

Not without a warrant.

What is the open fields doctrine?

There is no reasonable expectation of privacy in an area outside the curtilage, far enough away from the home.

Was it a dog sniff of a vehicle?

If during a lawful traffic stop, and does not prolong the duration of the stop beyond what is reasonably necessary, it is not a search (Caballes).

What does Caballes say?

A dog sniff of a vehicle is not a search if (1) during a lawful traffic stop, and (2) it does not prolong the duration beyond what is reasonably necessary.

Was there a subjective belief of privacy?

Courts look to whether the government action violated the privacy upon which the defendant “justifiably relied.”

Was the subjective belief objectively reasonable?

It is objectively reasonable to expect privacy in one’s home because Americans have always had such an expectation; however, it is not reasonable to expect privacy when audible or visible from a public place.

How is an objectively reasonable belief determined?

(1) Ability of the public to obtain the same information;

(2) Otherwise compliance with the law;

(3) Extent of intimate details revealed;

(4) Invasiveness of the search on quiet use of the property;

(5) Assumption of the risk (White).

What does White say?

One assumes the risk of their confidant being a government informant when disclosing private information.

What is the third party doctrine?

When someone voluntarily discloses information to a third party, it is no longer reasonable to expect that information to be private.

What are some examples of the third-party doctrine?

(1) bank statements (Miller);

(2) phone numbers dialed (Smith);

(3) trash on the curb (Greenwood).

What is the container doctrine?

Generally, the government cannot look inside containers found during a search.

Was there a seizure?

One occurs when there is government control over physical items or the movement of people.

What are some examples of seizures?

(1) not being free to terminate an interaction with law enforcement;

(2) being shot by law enforcement;

(3) being arrested or detained.

Was it by or on behalf of the government?

Informants cooperating with the government are acting on behalf of the government.

Was it unreasonable?

Generally, a search or seizure conducted without a valid warrant is unreasonable.

Was there a warrant?

A warrant must be (1) based on an affidavit showing probable cause that evidence of a crime will be found, (2) issued by a neutral magistrate, (3) specific as to the locations to be searched and items to be seized, and (4) executed in a reasonable way.

Was the warrant for a search?

To be lawful, the government generally needs probable cause + a warrant.

Was there probable cause for the search?

This requires a fair probability that (1) specific evidence of a crime will be found, and (2) the evidence will be found in the area searched; and can be established by (1) the observations of law enforcement, or (2) information provided by a reliable source.

Was the probable cause based on observations?

This can include witnessing a crime, witnessing enough suspicious circumstances, or observing odors for which they are trained (Johnson).

What does Johnson say?

Probable cause can be established by an officer observing odors that they are trained to detect.

Was the probable cause based on information from a reliable source?

This requires either the Spinelli or Gates test.

What is the Spinelli test?

Information from a reliable source requires an evaluation of the (1) basis of the knowledge, and (2) the veracity and reliability of the informant.

What was the basis of the informant’s knowledge?

Factors:

(1) personal observation or hear-say;

(2) detail of the information;

(3) from whom it was obtained;

(4) how it was obtained;

(5) a statement as to why it is reliable.

What is the veracity and reliability of the informant?

Factors:

(1) track record;

(2) self-incrimination;

(3) level of detail.

What is the Gates test?

When the information is from a reliable source, a totality of the circumstances test applies.This test evaluates the reliability of the informant and the credibility of the information provided, considering all relevant factors.

Was there probable cause for the arrest?

This requires a fair probability that (1) a crime has been committed, and (2) the arrestee committed the crime.

Was the arrestee an occupant of a vehicle?

If so, contraband found within the vehicle can be attributed to anyone in the vehicle, because one assumes the risks of whatever is within another’s vehicle upon entry.

Was the warrant specific?

It must (1) particularly describe the place to be searched and the person or things to be seized, relevant to the location to be searched, and (2) is to be determined based on the information known to the police at the time they applied for the warrant (Garrison).

What does Garrison say?

The specificity of warrants is to be determined in light of the information available to police at the time they applied, and hindsight cannot be used to justify a warrant.

Did the police knock-and-announce, and then wait?

This is a common-law requirement of a reasonable search, protecting human life, property, and dignity, but is subject to an exception for exigent circumstances to protect officer safety and the preservation of evidence (Wilson). Fifteen to twenty seconds is a reasonable time to wait (Banks).

What does Wilson say?

Exigent circumstances exceptions protect officer safety and prevent the destruction of evidence.

What does Banks say?

15-20 seconds is a reasonable time to wait during a knock-and-announce warrant.

Did the police obtain a no-knock warrant?

If so, the knock-and-announce requirement may be circumvented.

If it was unconstitutional, was evidence obtained?

The judicial remedy is the exclusion or suppression of evidence found in any effort to prove the crime against the individual whose privacy rights were violated.

What is the exclusionary rule/fruits of the poisonous tree doctrine?

Evidence traced to unconstitutional police action should be excluded or suppressed.

What is an example of the voluntary consent exception to the warrant requirement?

Knock-and-talks

What are the exceptions to the warrant requirement?

(1) voluntary consent;

(2) public arrests;

(3) exigent circumstances;

(4) searches incident to arrest;

(5) automobile exception;

(6) Terry stops.

What does Santana say?

Someone standing in the doorway of their home is visible to the public and, thus, a warrant is not required for their arrest.

What are exigent circumstances?

These include the threat of physical pursuit, hot pursuit, the likely destruction of evidence, and other extenuating circumstances that would put officer safety at risk.

What is the Riley doctrine?

Digital data doesn’t threaten officer safety and, thus, a warrant is required to search.

What are searches incident to arrest?

An exception to both the warrant and probable cause requirements, this (1) requires a lawful arrest, even if for a minor, nonviolent crime, and even when there is no indication of danger or risk of destroying evidence; and (2) must be substantially contemporaneous with the arrest.

Was the arrestee an occupant of a vehicle for purposes of a search incident to arrest?

If so, a search is allowed if (1) there is reason to believe the vehicle contains evidence of the crime for which the arrestee was arrested, or (2) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search (Gant).

What is the Gant doctrine?

A search of a vehicle incident to arrest can include the passenger compartment only if the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

What does Thornton say?

The vehicle search incident to arrest exception applies to recent occupants of vehicles.

What is the Moore doctrine?

Even if a state law prohibits arrest and requires a citation, a vehicle search incident to arrest may be conducted so long as there was probable cause for the arrest.

What does Atwater say?

Police can arrest for minor traffic offenses.

What is the Belton rule?

Previously, police could search the entire passenger compartment of a vehicle whenever they arrested an occupant, even if it was not within the arrestee’s reach.

What is the Houghton doctrine?

Police can search a passenger’s belongings in the vehicle only if (1) there is probable cause to search the car, and (2) the object of search could fit therein.

What is the Chimel doctrine?

A search incident to lawful arrest is proper when (1) an officer places someone under custodial arrest for any reason, but (2) the search must be strictly tied to and (3) justified by the circumstances, and (4) should be limited to areas tied to officer safety and evidence preservation.

What areas are permitted under Chimel?

(1) arrestee’s person;

(2) areas within arrestee’s wingspan;

(3) closets & spaces immediately adjoining the arrest location, if they could be used to launch an attack;

(4) cursory visual inspection of the house, if there is reasonable suspicion, based on specific & articulable facts, that someone posing a danger is hiding in the area.

What areas are prohibited under Chimel?

(1) a room other than that in which the arrest occurred;

(2) anywhere the arrestee could not have reached, including drawers;

(3) the house if the arrest occurred outside.(4) areas beyond the immediate control of the arrestee; (5) locations not in plain view of the officer during the arrest.

What is the Robinson doctrine?

Searches of persons and containers on the person are allowed incident to arrest without probable cause or a warrant.

What is the automobile exception?

This is relevant to a vehicle search where (1) there is no arrest, but (2) there is probable cause that the vehicle contains evidence of a crime, and (3) allows a search of the vehicle and containers therein that might conceal the object of the search, but (4) does not allow a general exploratory search without further justification.

What is the Carney doctrine?

Only probable cause is required to search a vehicle if: (1) it is being used on highways or is readily capable of such use; and (2) is found stationary in a place not regularly used for residential purposes, temporary or otherwise.

What factors are used to determine if a vehicle is a home?

(1) elevation on blocks;

(2) location;

(3) licensure;

(4) connection to utilities;

(5) convenient access to a public road.

What is the Carroll doctrine?

Police with probable cause to search the entire vehicle can search any part of the car and its contents, including the contents of containers therein, without a warrant.

What is the Acevedo rule?

Probable cause to believe that a container placed in the trunk contains evidence does not justify a search of the entire vehicle.

What is the Terry stop exception to the warrant requirement?

Reasonable suspicion may justify a limited stop and a limited search.

Was there a reasonable suspicion?

A reasonable suspicion is more than a mere hunch or unparticularized suspicion, but less than probable cause, and is based on factors including (1) an officer’s experience, (2) the location of the stop, (3) unprovoked flight from police, (4) time of day, and (5) rurality of the area (Long).W

What does Long say?

The time of day and the rurality of the area should be considered in determining whether there was a reasonable suspicion for a Terry stop.

Was it a limited stop?

This falls short of a full arrest, but is allowed on the basis of crime prevention and detection.

Was it a limited search?

Otherwise called a frisk, this is allowed for officer safety and requires (1) a reasonable suspicion that the person is armed and dangerous, and (2) a reasonably prudent person would believe their safety or others’ safety was in danger.

Under Watson, what is required for law enforcement to arrest someone in public?

Probable cause, but no arrest warrant.

Under Payton, what is required for law enforcement to arrest someone in their home?

Probable cause + arrest warrant.

Police observe person A shoot person B with a gun in a busy shopping district. They disarm person A and arrest them without a warrant. Assume no exceptions to the general Fourth Amendment rules apply here (i.e. put aside any consideration of whether this would qualify under the exigent circumstances exception). Would this arrest be lawful?

Yes, it would be lawful because the officers had probable cause, and they did not need an arrest warrant.

Police are patrolling the area around a nightclub and observe five people standing in a dark alley. All of them appear to be smoking cigarettes. When the officers approach, they recognize the smell of burnt crack cocaine and find a crack pipe on the floor near the group of people. It is hot to the touch and appears to have been used quite recently. The police arrest all five people for possession of illegal drug paraphernalia for the pipe. What would a prosecutor's strongest argument be?

There was probable cause that at least one of the 5 used the crack pipe, since it was on the floor nearby and hot to the touch, and all 5 would have had a common enterprise.

An officer has probable cause to arrest Bobby for committing an armed robbery. They do not get an arrest warrant but wait outside of Bobby’s home for him to come outside. When he walks outside his home and onto the sidewalk, they arrest him. True or False: This is a lawful arrest.

True

Under Terry v. Ohio, an officer may conduct a pat down search (a frisk) even if they do not have probable cause to support the search.

True

What is the reason the Court provides for allowing officers to conduct limited pat down searches of an individual based on reasonable suspicion?

To promote the safety of officers and of the public.

A police officer at a college campus notices a woman who looks out of place on the campus. Her hair is disheveled and she is not dressed like the other students. Fearing that she may be planning an attack, he stops her and conducts a limited pat down search for weapons. 

True or False:  The officer had reasonable suspicion to stop and frisk her.

False

Law enforcement officers receive an anonymous tip that a woman wearing a blue blazer and purple plants was planning an attack at a college campus. The tipster told police that the woman would be carrying a black duffle bag that contained weapons, and that she would board a bus at First and Main Street around 3pm. The tipster said the woman would get off at the bus stop near the Student Commons building on campus about 5 minutes later. Police observe the bus stop at First and Main Street and see a woman wearing a blue blazer and purple pants (and carrying a black duffle bag) begin to board a bus that was headed toward the Student Commons building. They conducted a brief investigatory stop and frisk of the woman. 

True or False:  The officer had reasonable suspicion to stop and frisk the woman.

True

One night, two police officers were patrolling part of Los Angeles known as a high crime area. As they turned their marked police car around a corner, they saw a group of five young men huddled together on the sidewalk. As the cruiser approached, the men looked at the car and suddenly one turned and ran away. The officers chased the man in their cruiser, and cornered him in a nearby alley, where he stopped. At this point, the officer conducts a Terry

True or False:  The officers had reasonable suspicion that justified the Terry stop.

True

One night, two police officers were patrolling part of Los Angeles known as a high crime area. As they turned their marked police car around a corner, they saw a group of five young men huddled together on the sidewalk. As the cruiser approached, the men looked at the car and suddenly one turned and ran away. The officers chased the man in their cruiser, and cornered him in a nearby alley, where he stopped. At this point, the officer conducts a Terry

True or False:  The officers had reasonable suspicion that justified a limited pat down search for weapons.

False

Police receive an anonymous call that a man in his early sixties is carrying an illegal weapon. The caller explained that the man was sitting at a table in MacArthur Park playing dominoes, and that he was dressed in khaki pants, a blue button-down shirt, and was wearing a brown hat. The officers go to MacArthur Park and see a man sitting at a table playing dominoes who fits the description the caller provided.

 True or False:  There is reasonable suspicion for a Terry stop.

False

A police officer approached a man suspected of selling marijuana to high school students. He conducted a pat down search. The officer later testifies that he frisked him “because he’s a drug dealer and you never know with these guys, but chances are, when there’s smoke, there’s fire.”

True or False:  There is reasonable suspicion for a Terry stop and frisk here.

False

A brand new police officer with no training or experience in narcotics enforcement smells an odor they believe to be burnt opium emanating from a vehicle. True or False: These facts give rise to probable cause.  

False

A police officer observes one person stab another in the stomach before running off. True or False: These facts give rise to probable cause. 

True

An anonymous person calls the police to report that their neighbor is “up to no good” and has “rough looking people coming and going from their house at all hours.”  True or False: These facts give rise to probable cause. 

False

A government informant who has provided accurate information about gang-related crimes on prior occasions tells police that members of the same gang he has provided prior information about are using an apartment at a specific address as a hub for packaging and distributing drugs. He knows this because he was invited into the apartment where he was asked if he wanted to purchase methamphetamine. Police set up surveillance at the apartment and observe several people they recognize as members of this gang going into the apartment in question. They also recognize several people they recognize as local meth users going into the same apartment. True or False: These facts give rise to probable cause. 

True

A police officer observes two people run into a bank with guns drawn and immediately hears an alarm sound from inside the bank. True or False: These facts give rise to probable cause. 

True

Police observe a man who looks suspicious to them on the sidewalk outside of a bank. He walks up the block, turns around, and walks back down the block, looking at the entrance of the bank as he does so. He repeats this three times. The officer believes he is “casing” the bank in preparation for robbing it. True or False: These facts give rise to probable cause.

False

True or False: According to the Supreme Court, people have a reasonable expectation of privacy in trash they put out on the street to be collected.

False

What is voluntary consent?

An exception to the warrant requirement, an individual can give up their 4th Amendment rights and allow the government to conduct a search or seizure with no justification.

What does “voluntary” mean in relation to consent?

Not coerced by explicit or implicit means or by implied or covert force

Who has the burden of proof to show consent was voluntary?

The government

What factors are considered to determine if consent was voluntarily given?

Totality of the circumstances, including:

(1) Manner of police questioning;

(2) Knowledge of the right to refuse;

(3) Miranda or other warnings;

(4) Consenter’s state of mind;

(5) Consenter’s education & intelligence;

(6) Use of weapons;

(7) Time of day;

(8) Location

What is the scope of a consent search?

What a reasonable person would understand the scope of the search to be

Who can give consent, other than the suspect?

A third party with common or apparent authority over the property

What does “common authority” mean?

Mutual use of the property and joint access or control for most purposes.

What happens if another occupant is present and objecting to consent?

The consent is not valid.

What are pretextual stops?

Stops justified by the pretext of the situation after execution for unconstitutional reasons.