Clk investigations

These flashcards cover crucial terms and concepts related to criminal procedure and the Fourth Amendment, focusing on rights, judicial procedures, and definitions relevant to law enforcement and evidentiary rules.

what are the 8 norms of the CJ system that affect criminal procedure & outcomes?

1. (PERSONAL LIBERTY VS SECURITY) Security vs. individual rights

2. Federalism

3. Racism

4. Accuracy of verdicts

5. Fairness of procedure

6. Limited-Government Provisions

7. Efficiency (really important)

8. Post September 11th

does the 4th amend apply to state or fed government?

federal government only

what does the 4th amendment protect?

The Fourth Amendment protects persons, houses, papers, and effects from unreasonable searches and seizures. It does not prohibit all unreasonable government conduct—only that which qualifies as a “search” or “seizure” of a protected interest.

what does the 4th amendment protect against?

unreasonable government searches and seizures - NOT private searches/ seizures

how do we know if someone is eligible for 4th amend protection? (hint: people)

People = a class of persons who have national community or developed sufficient connections with this country

People (not limited to citizens) =

U.S. citizens of Middle Eastern descent = clearly protected

non-citizens lawfully in the U.S. = unknown/unsettled

non-citizens unlawfully in the U.S. = unknown/unsettled

non-citizens living abroad = clearly NOT protected

o does not apply to property of a nonresident alien located abroad, even when searched by U.S. agents

4 important clauses & doctrines under 4th amendment

(1) reasonableness clause

(2) warrant clause =  to obtain a warrant, you need probable cause

(3) state actor doctrine = state actors can become government actors and, in that case, people can use 4th amendment against these state actors

(4) exclusionary rule =  evidence obtained in violation of the 4th Amendment is excluded from the court in a prosecution

what are the 3 exceptions to when the exclusionary rule doesn’t apply?

(1) No exclusionary rule in civil cases

(2) No exclusionary rule for impeachment of evidence

(3) No exclusionary rule for grand jury proceedings

are states bound by the exclusionary rule?

YES - states are bound by the exclusionary rule

does the 4th amend protect places?

NO - The Fourth Amendment “protects people, not places.” What a person knowingly exposes to the public is not protected, but what a person seeks to preserve as private—even in a public setting—may be constitutionally protected

what are the 2 tests to determine if an illegal search has occurred?

(1) jones test or (2) katz test

which test (jones or katz) looks at reasonable expectation of privacy under a search?

Katz - a search occurs when the govt conduct interferes with an actual (subjective) and reasonable (objective) expectation of privacy

Jones situations trigger the 4th amendment because of a trespassory invasion, regardless of privacy expectations

what is the jones test to determine if a search has occurred?

a search occurs when the govt obtains information by physically intruding on persons, houses, papers, or effects

Katz 2-part reasonable expectation of privacy test: 

Katz 2-part test:

(1) Person exhibited an actual subjective expectation of privacy; and

(2) That expectation is one society is prepared to exercise as reasonable

o Ex: Words/conversation in telephone booth qualifies because Katz shut the door and paid for privacy.

if there is a reasonable expectation of privacy established then government…?

If reasonable expectation of private established under Katz → government conducted an illegal search

which 3 examples are when to use Jones & which 3 are when to use Katz 

(1) Police attach a GPS tracker to a suspect’s car without a warrant

(2) FBI places a wiretap on a public phone booth without entering it

(3) Officers enter the curtilage of a home with a drug-sniffing dog

(4) Police use a thermal imager to detect heat patterns inside a home

(5) trespassory surveillance

(6) non-trespassory surveillance

(1) = jones

(2) = Katz

(3) = jones 

(4) = Katz 

(5) = jones

(6) = Katz

is there a reasonable expectation of privacy if talking with a colleague ?

No reasonable expectation of privacy if talking with colleague and colleague then communicates with police

Assumed the risk when sharing information

is there a reasonable expectation of privacy if confided in an informant?

No reasonable expectation of privacy if confided in an informant

If you tell a friend something and they turn out to be an undercover informant, the police can use what you said (assumed risk)

is there a reasonable expectation of privacy if undercover agent buys drugs in your home?

No reasonable expectation of privacy if undercover agent buys drugs in your home

You invited them in and chose to do something illegal. There’s no reasonable expectation of privacy for criminal acts you willingly expose to someone else.

is there a reasonable expectation of privacy if undercover agent attempts to testify?

No reasonable expectation of privacy if undercover agent attempts to testify

The undercover cop can testify about what happened in your home, because you let them in and spoke freely; you didn’t keep it private in a way society would protect.

is there a reasonable expectation of privacy if undercover agent uses a recording device?

No reasonable expectation of privacy if undercover agent uses a recording device

If the undercover cop records your conversation, the recording can be used - you assume the risk that the person you’re talking to might record or repeat what you say

is there a reasonable expectation of privacy if undercover agent uses a radio transmitter?

No reasonable expectation of privacy if undercover agent uses a radio transmitter

If the undercover cop wears a wire and sends your words to other officers, that’s allowed - once you share information with someone, you can’t expect it to stay private.

is there a reasonable expectation of privacy if you are staying at someones house over night or are a social guest?

Valid expectation of privacy if overnight/social guest

do you need a warrant from testimony or recordings from informants carrying electronic equipment?

Testimony or recordings from informants carrying electronic equipment are admissible without a warrant.

what is the 3rd party doctrine under a search?

a person has no reasonable expectation of privacy in information he voluntarily turns over to third parties

However, to the extent that we need to:

 Protect privacies of life against arbitrary power

 Place obstacles in the way of too permeating police surveillanc

does 3rd p doctrine apply to physical location through wireless carrier?

3rd party doctrine is not absolute & does not apply to everything, it does NOT EXTEND to physical location through wireless carrier (cell phone)

how is the 3p doctrine limited for cell-site location? 

In Carpenter the court limited the 3rd party doctrine for cell-site location information (CSLI). It said that even though CSLI is held by a third party (your wireless carrier), it’s so revealing about your life that the government needs a warrant to access it.

The Court emphasized two principles:

· (1) Protect privacies of life against arbitrary power→ The government shouldn’t have unchecked access to deeply personal data that reveals your movements, habits, and associations.

· (2) Place obstacles in the way of a too-permeating police surveillance→ Prevent law enforcement from creating a surveillance system that tracks everyone all the time without judicial oversight.

is using a pen register considered a search?

· Pen register is NOT a search

· No actual/reasonable expectation of privacy in numbers dialed

· a person has no reasonable expectation of privacy in information he voluntarily turns over to 3rd parties

· Example: Court upheld use of a pen register (installed outside the home) to capture call information, even though it revealed activities inside a residence.

are dog sniffs searches?

yes & no ; may or may not be a search

· dog sniffs in public places is not a violation of the 4th Amend, but a dog sniffing at your front door of your house is a search

· Examples:

o A dog sniff of luggage in a public airport is not a search under the Fourth Amendment. Reasoning: minimally intrusive, doesn’t expose lawful items, reveals only contraband.

o Dog sniff during a lawful traffic stop is also not a search. Reasoning: Contraband possession has no legitimate privacy interest.

are open fields searches?

not a search

· law enforcement entry onto open fields is not a search – no reasonable expectation of privacy in fields

· Open fields are not protected by the 4th amendment

o Open fields include any unoccupied/undeveloped area outside the curtilage of your home - even fenced or signed land (“no-trespassing”) is not protected

Need not be open, need not be a field – think woods area

is curtilage a search? 

may or may not be a search

Curtilage is the area immediately surrounding the home and deserves the same protection as inside your home

· protected by the 4th amendment – CURTILAGE IS THE HOME

o gets very specific & turns on layout of home

o focus on whether the area is tied to home life

4 factor test to determine whether a significant property is considered curtilage

(1) proximity of area of home

(2) weather within an enclosure surround home

(3) use to which area is put

(4) steps taken by resident to protect view of passerby

If curtilage then treat as home with MAX protection

is using aerial surveillance considered to be a search?

not a search because no need for warrant

· 4th amend does not require police traveling in public airways at protocol altitude to obtain a warrant

· If observing only what could be seen by public operating within flight regulations, not a search because there is no reasonable expectation of privacy as anyone flying over could see

· CA/defense: Technology allows intrusion w/out trespass; society shouldn’t force people to build roofs over yards

· Examples:

o Plane at 1,000 feet over fenced backyard is NOT a search because anyone in public airspace could see it, so no reasonable expectation of privacy

o Helicopter at 400 feet over greenhouse is NOT a search because helicopters can legally fly at that altitude, and no interference/noise/dust was shown

do garbage searches need a warrant?

No - not a search because no need for warrant

· no reasonable expectation of privacy in trash left out in plastic bags on or at side of public street for pickup

· Garbage is accessible to the public (animals, scavengers, snoops) and is intended to be handed to a third party (the trash collector).

· Since anyone could search it, the police may as well.

are pole cameras searches? 

Pole cameras near house are not a search

is squeezing luggage considered a search?

not a search

· Tactile manipulation of luggage—such as squeezing a bag—is a Fourth Amendment “search,” because it goes beyond mere visual observation and intrudes on privacy expectations. Passengers may expect bags to be moved, but not deliberately felt in an exploratory manner

is using thermal-imaging devices considered a search? 

Yes - s a search

· Using sense-enhancing technology to obtain information regarding the interior of the home that could not otherwise be obtained without physical intrusion constitutes a search—at least when the technology is not in general public use.

o Not in general public use = public does not have access to this type of technology (general public use definition is always going to change)

o

what is the kyllo test and what is it used for ?

used to determine if a certain tech is a search

Kyllo test: (3-part test)

 (1) Technology is used to gather details about the interior of a home.

 (2) The information could not otherwise be obtained without physical intrusion.

 (3) The technology is not in general public use

is using a beeper/ GPS tracker considered to be a search?

may or may not be a search

· Beeper in container to track movements on public roads is not a search

o individuals have no reasonable expectation of privacy in movements on public thoroughfares

· Beeper in container to track movements not only on public roads but also inside private residences is a search

o warrantless monitoring inside a home violates the Fourth Amendment, since it revealed information that could not be obtained from outside observation

· Beeper/GPS device attached to a vehicle to track movements on public roads is a search

o Jones test ex: physical intrusion on Jones’s vehicle = protected “effect”

o Because the Fourth Amendment protects property interests as well as privacy, attaching the GPS device without a valid warrant was a search.

searches that have warrants are ___

but not valid if predicated on 4th amendment violation

Searches that have warrants are GOOD searches BUT not valid if predicated on prior 4th amendment violation

o Ex: Bringing drug-sniffing dog to porch without warrant & then later getting a warrant doesn’t work

what is a seizure of property?

A seizure of property occurs when there is meaningful interference with an individual’s possessory interest in that property

what types of property may be seized? examples?

Police officers can seize anything they have probable cause to believe was in a crime

Examples:

 Contraband

· Things cannot lawfully be possessed (ex: cocaine, weapons, unauthorized devices, firearms held by felons)

 Fruits of crime

· Stolen goods (ex: stollen painting from theft or cash earned from drug trafficking)

 Instrumentalities of a crime

· (ex: getaway car, weapon)

 Mere evidence

· Things relevant to the prosecution (i.e. blood stained shirt); items useful only as proof, not inherently illegal

· Police must have probable cause to believe it is criminal evidence

· Recently added (3 above are main types of property police can seize)

 Container

· Probable cause that a container holds contraband empowers police to seize for reasonable time to obtain a warrant to a search

An arrest, search or warrant done in absence of _____ is ordinarily an unreasonable one, thus a violation of 4th amendment

An arrest, search or warrant done in absence of probable cause is ordinarily an unreasonable one, thus a violation of 4th amendment

when does probable cause for an arrest exist?

exists where the facts & circumstances w/in the officer’s knowledge & of which they have reasonably trustworthy information are sufficient to warrant a man of reasonable caution to believe an offense has been or is being committed by the person arrested

when does probable cause for a search exist? 

Where the facts & circumstances w/in the officer’s knowledge & of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that evidence subject to seizure will be found in the place to be searched

PC takeaway for arrest & search: Probable cause exists when facts and reasonably trustworthy information would lead a person of reasonable caution to believe:

(1) a crime has been or is being committed (probable cause to arrest) or

(2) evidence will be found in the place to be searched (probable cause to search)

when does probable cause for a warrant exist? 

determined under a totality-of-the-circumstances test.

o The neutral & detached magistrate must make a practical, common-sense decision whether, considering all circumstances – including an informants (1) credibility, (2) reliability, (3) basis of knowledge – there is a fair probability that contraband or evidence will be found

Aguilar -Spinelli 2-prong test for evaluating informant-based affidavits:

(1) the basis of the informant’s knowledge must be provided, and

(2) the informant’s credibility or reliability must be established. Innocent details corroborated by investigation do not by themselves validate an informant’s unsupported tip

what is the franks hearing rule?

Where officer lies on an affidavit, you can challenge the truthfulness supporting the warrant

o Must show by a preponderance of the evidence that it is untrue → if remaining supporting evidence is insufficient for probable cause the warrant is void

exception to probable cause requirement:

Consent – a waiver of 4th amend protection

2 types of warrants:

(1) arrest warrant; (2) search warrant

what do police need to arrest a suspect inside a home? 

arrest warrant - Police must have a warrant to arrest a suspect inside a home

what is the standard for an arrest warrant? 

police have probable cause that a person is or has committed a felony

o If sufficient evidence (aka probable cause) that a felony (any state crime punishable by more than a year in prison) has been committed, then police can go get arrest warrant

exception to an arrest warrant regarding searches…

An arrest warrant gets you into someone’s home IF police believe they are in their home at the time of arrest warrant → if you want to search home get arrest warrant + search warrant

4 elements of a search warrant:

(1) supported with probable cause

(2) probable cause established by oath or affirmation

(3) particularity (must describe place & things to be searched and seized; no general warrants; nothing shall be left to the discretion of the officer executing the warrant)

(4) signed by a neutral and detached magistrate (independent person viewing it)

what is the rule you need to follow when executing a search warrant? 

Knock & announce rule is required if you have a search warrant

exception to knock & announce rule:

No-knock entry allowed where there is reasonable suspicion that knocking & announcing under particular circumstances would: be dangerous/futile, or undermine the investigation (ex: destruction of evidence)

 Reasonable suspicion standard = less demanding standard than probable cause; police need flexibility in dangerous situations, while individuals still get some Fourth Amendment protection

CA/ defense to knock and announce rule:

CA/ defense: Violation of knock & announce rule does not have any real consequences under 4th amendment; courts won’t suppress the evidence just because officers skipped knocking

4 exceptions to warrant requirement:

(1) exigent circumstances

(2) searches incident to an arrest

(3) automobile exception

(4) consent

what are exigent circumstances?

when a warrantless intrusion may be justified if officers had reason to believe they needed to enter immediately

o (1) hot pursuit of fleeing felon;

o (2) imminent destruction of evidence;

o (3) need to prevent escape;

o (4) risk to police or others inside or outside the building;

o (5) imminent serious injury

do exigent circumstances apply if generated by police conduct?

Yes - This warrant exception applies even if the exigent circumstances are generated by police conduct – so long as conduct complies w/ 4th Amend.

 Ex: Knocking on door is not exigent circumstance; BUT - knocking on door + hearing suspect rummaging around after knock = exigent circumstance

3 counter arguments to when exigent circumstances don’t work

(1) not a law enforcement emergency – needed warrant, not an exigent emergency. (

2) No warrantless entry for DUI (a minor offense) just to preserve blood alcohol evidence. Minor offenses rarely justify exigent entry.

(3) Hot pursuit of misdemeanors is not an automatic exigency. Courts must look case-by-case at circumstances.

4 steps to answer essay question on intrusion w/o warrant based on law enforcement emergency:

#1 determine whether there has been a law enforcement emergency

#2 whether it was 1 of the 4 above options (crime of violence)

#3 was there a sense of urgency?

#4 is there a worry of emergent harm to others?

can cars create exigent circumstances?

Yes - can create an exigent circumstance to search car because moveable and presented in exigency

o where there is probable cause to seize and hold car until obtaining a warrant, as a practical matter it is no more intrusive to search the car

car exigent circumstances when cars may be searched only apply where:

 car is on a public road

 there is probable cause

 occupants are alerted and may use moveable nature of car to avoid detection of evidence

what are the 3 parts of searches incident to arrest?

3 parts of SiA’s: search person, beyond person, & cars) particular kind of arrest defines the scope of the search

what is the rule for SIA?

SIA must be simultaneous/ contemporaneous in time – not immediate but within a reasonable amount of time after arrest; can’t justify a search before you arrest someone

MUST ARREST then SEARCH

Balancing test to determine whether a certain type of search can be done without a warrant:

(1) Degree needed for legitimate government interests

(2) Degree to which it intrudes privacy

rule for arresting person then search of person & things on person:

once a lawful custodial arrest is made, officers may automatically search the person fully

can police search digital information (cell phone) on person at time of arrest? exception? 

NO - police may seize a phone during an arrest but cannot search its contents without a warrant.

o Exception: Exigent circumstances remain an exception to digital information, but the search-incident-to-arrest exception does not extend to digital information

are breath tests & blood tests for drunk driving okay under SIA?

Bright-line rule: breath tests okay incident to arrest, blood tests require a warrant.

what is the rule for arrest person then search beyond person (area surrounding the person) ? 

police may search the person and the area within his immediate control (i.e. the area from which he could reach a weapon or evidence) incident to arrest

what is the rule for searching a passenger compartment ? (2 ways this is possible)

When the arrestee is a recent automobile occupant, officers can search the passenger compartment of a vehicle only when: (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, OR (2) when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle

(1) unsecured (almost never happens because police usually secure arrestee before searching area)

(2) crime of arrest

do pretextual stops violate the 4th amend?

NO - pretext stops cannot violate the 4th amendment; the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action

Ex: When an officer uses a minor legal reason (like a broken taillight) as a pretext to investigate something more serious (like drug trafficking).

· If the officer had a valid legal basis for the initial action (e.g., the taillight violation), then the fact that the officer’s real motive was something else does not make the stop unconstitutional—so long as the situation objectively justifies the action.

do searches incident to a traffic citation violate the 4th amend?

yes - violates 4th amendment because neither officer safety nor evidence preservation applies once a citation is issued

what is the automobile exception to the warrant requirement rule?

Police may search a vehicle and any container within it without a warrant if they have probable cause to believe the car/container contains contraband or evidence of a crime.

This is justified by the (1) car's ready mobility and (2) the reduced expectation of privacy in vehicles.

ONLY NEED probable cause to believe that either the vehicle or the container holds contraband or evidence of a crime, provided the container is inside the car at the time of the search

is there an automobile exception in vehicles used for living?

NO - heightened privacy in vehicles used as living quarters may require a warrant absent exigent circumstances

T/F: police can search containers that aren’t in cars under automobile exception? 

False - can’t search containers that aren’t in cars → as soon as container inside car, can search

is a warrant needed for containers belonging to passengers? 

No - Law enforcement is justified in searching all containers capable of hiding contraband, regardless of ownership – meaning if police have probable cause to search a car, they may search containers belonging to passengers that could conceal the object of the search

is a warrant needed for automobile inventories? 

No - When police lawfully take custody of a vehicle → warrantless inventory searches of vehicles are permissible when conducted according to standard procedures

is a warrant needed to search personal luggage? 

Yes - you need a warrant to search it

Personal luggage, unlike an automobile, is not subject to pervasive regulation, is not routinely inspected, and serves primarily as a repository for personal effects

search incident to arrest vs automobile exception?

Search incident to arrest (SiA)

Rationales:

(1) Officer safety

(2) Preserve evidence

Scope: passenger compartment (grab-able area)

Auto 

Rationales:

(1) Mobility

(2) Less reasonable expectation of privacy

Scope: entire car (to extent there is probable cause)

what is the plain view doctrine?

does it permit searches or seizures? 

Police never have to avert their eyes or senses; BUT they must lawfully be in the place of plain view

permits seizures - NOT entry or a broader search

is plain view alone enough to justify warrantless searches? 

NO - (plain view alone is never sufficient to justify warrantless search for evidence

what is the plain view rule when officers can seize evidence without a warrant: (4 elements)

(1) officer did not violate 4th amendment in arriving at location from which evidence is in plain view (because search warrant or exception);

(2) incriminating character must be immediately apparent;

(3) officer must have lawful right to access the object itself

(4) need not to be inadvertent

difference between #1 & #3 under plain view doctrine mean? (1 = no 4th amend violation in arriving at location/ 3 = PO must have lawful access to object)

1 = focuses on if police are allowed to look from where they are standing (public sidewalk)

3 = focuses on if police can go in the place to get object 

what does “need not be inadvertent” mean?

surprise not required - police officer can suspect, hope, or intend to find object under plain view - DOES NOT HAVE TO FIND ON ACCIDENT

does seeing something in plain view give officers the right to conduct a further search? 

NO 

For example:

o If an officer is inside a home legally (with a warrant or valid exception) and sees drugs on the table, they can seize those drugs.

o But if the officer is outside and sees something through a window, they cannot enter the home without a warrant or another valid exception. Plain view alone doesn't authorize entry.

what is the consent exception to the warrant requirement ?

consent is a waiver of 4th amendment protection – justifies a search without warrant, and even one without probable cause

what are the 3 elements for consent?

Consent must be: (1) voluntary, but need not be knowing/informed, (2) no coercion, & (3) voluntariness determined by the totality of the circumstances

is knowledge of the right to refuse consent a prerequisite to finding valid consent?

NO - While knowledge of the right to refuse consent is a relevant factor, it is not a prerequisite to finding valid consent

can consent be express or implied?

Can be both express or implied, but cannot be a product of duress or coercion

what are the circumstances that courts consider when determining voluntariness of consent? 

Circumstances include schooling, low intelligence, lack of effective analysis, voluntariness of any statement taken under those conditions, prior encounters with police, presence of a gun and whether its drawn, number of officers, & how the officer asks

2 limits to consent: 

Even if consent is valid, individuals can restrict its scope (where officers can search) and duration (how long they may search).

when can consent be withdrawn? 

Consent can also be withdrawn at any time, and police must stop unless they gain independent justification to continue.

3 important points about consent: 

Consent justifies a search without a warrant, and even one that is without probable cause;

Consent must be voluntary, but need not be knowing; and

Burden of proof is on government to prove voluntary consent (but need not prove knowledge of right to refuse consent)

what is the rule for consent when dealing with shared dwellings? 

when the objecting tenant is present and refuses, police cannot rely on another’s consent; but if the objector is absent, the consent of one resident remains valid

is consent valid if police reasonably believe the person consenting has the authority to do so?

yes - consent is valid if police reasonably believe the person consenting has the authority to do so, even if that belief later turns out to be mistaken

T/F: factual errors do not invalidate probable cause & mistaken warrants

TRUE

2 things police can seize?

people + property

what are the 2 types of seizures of ppl we focused on? 

arrest & terry stops are seizures under the 4th amendment