Exam 2 CJL3410

Search Warrant Requirements

particularity: search warrants must "particularly describe the place to be searched" and "to be seized"

affidavit: sworn statement by officer of facts and circumstances of search

"knock-and-announce" rule

Officers have to knock and announce that they are law enforcement officers with a search warrant before they enter a house to perform a search

Occupant failure to respond: officers must wait a "reasonable amount of time" after announcing presence to break and enter

Exceptions: prevent imminent harm, prevent destruction of evidence, prevent escape of suspect

knock-and-talk

technique where police officers go to people's residences without search warrant and knock on door

SCOTUS has no interrogated "knock-and-talk" since 1948

warrantless searches

most searches are made without a warrant

major exceptions to warrantless searches

searches incident to arrest, consent searches, vehicle searches, emergency searches

Search incident to arrest

reason: protect officers, from suspects who might harm them, prevent arrested suspects from escaping, preserve evidence, suspect, might damage or destroy

grabbable area and vehicle searches: officers can search the arrested person in the area under immediate physical control

searches is incident to misdemeanor arrests: a custodial arrest of a suspect based on probable clause is reasonable intrusion under the fourth amendment

search incident to protest arrests: please make a restaurant expense when there is probable cause, Scotus has held that pretext searches are reasonable

Consent, searches

individuals give officers permission to perform search warrant without warrant or probable cause, most common type of search

Government must prove that voluntary consent was given by the preponderance of the evidence. Two legal tests of consent:

waiver test of consent to search, (subjective test), voluntariness test of consent to search (objective test)

scope of consent

consent is as broad as officers reasonably believe

withdrawing consent

lower courts say, must withdraw consent by "unambiguous acts or unequivocal statements "

third party consent

two theories of third-party consent:

1. actual authority consent = someone has actual legal authority to consent for someone else to search their home and property

2. apparent authority consent = officers reasonably believe that someone has legal authority to consent for someone else to search their home or property, but there is no actual authority

vehicle searches

vehicle exception to warrant requirement, Supreme Court held that warrant list search a vehicle was permissible, because securing warrants was not "practical" for moving objects

vehicle container searches: if officers have probable cause warrant list, search of passenger compartment, glove apartment, and trunk is permissible

Emergency searches

warrantless searches can be based on "exigent circumstances "

four main categories: officer, safety, destruction of evidence, suspect, escape, danger to community

Special needs searches

some searches are not based on probable cause, or even reasonable suspicion that a crime took place, but based on some "special need"

incriminating evidence discovered during a special needs. Search will be admissible.

inventory searches

when a person is in police custody, please take an inventory of their personal property in containers

reasonable, if the government special needs, outweighs, individuals, privacy, or there is an objective basis to the inventory search

international border searches

warrantless searches of borders, do not violate the fourth of an amendment, government interested in controlling international borders, outweighs limited invasion of privacy

airport searches

routine airport searches are permissible without reasonable suspicion or probable cause, Airport searches, involve minimal invasion of privacy, invasion of privacy is also voluntary

dorm room searches

fourth amendment, Oliver Hibbetts, unreasonable, searches and seizures by government agents. Only law enforcement college officials can perform a dorm room search.

Drug Testing

considered a search

employee: searches to uncover employee drug use through drug testing are directed at a special need. Testing the blood breath and urine of some public in place is reasonable without individualized suspicion.

prenatal: Many jurisdictions perform prenatal drug testing in hospitals. Prenatal drug testing requires a warrant if the purpose is law-enforcement.

student: Schools act as substitute parents under in loco parentis. School officials do not need to have probable cause or warrant to search students. Drug testing consist constitutes a search random testing is reasonable without individualized suspicion.

custody related searches

any person who enters a correctional facility maybe search without probable cause. There is reduce expectation of privacy in correctional setting.

prisoners: prisoners have a limited expectation of privacy, Supreme Court held. The prisoners did have a limited expectation of privacy. Prison searches can be performed without probable cause.

jail strip searches: Strip searches are reasonable if they help maintain the safety in order of the jail. For the searches in the invasion of privacy is greater and individual suspicion may be required.

probationers: persons on probation or parole also have diminished fourth amendment rights due to custody consent and balancing. police can search probationers homes without warrant or probable cause, only reasonable suspicion is required

parolees: please concerts, parolees home without warrant probable cause or reasonable suspicion

pre trial detainees: supreme Court has not ruled on this issue

confession v. incriminating statement

confession: criminal suspects, make knowledge their criminal guilt, can be oral or in writing

incriminating statements: any statement made by suspect that tends to indicate guilt

Miranda

do you have the right to remain silent, anything you say, can, and will be used against you in court, you have the right to a lawyer, if you cannot afford, a lawyer, one will be appointed for you

apply a for self incrimination due process and right to counsel (5th, 6th and 14th amendment)

bright line rules: Suspect in claim right to remain silent at any time, if suspect ask for a lawyer, interrogation, cannot begin, statements made, without a lawyer present, put heavy burden on prosecution to prove that the rights were waived, statements, made a violation of rules cannot be admitted into evidence, remaining silent, cannot be used against defendant

interrogations

functional equivalent of a question test:

interrogation is not limited to direct questioning

deliberately eliciting a response test: once right to counsel applies, focus on whether police officers intended to illicit response

custody

Miranda rules only apply to Custodio interrogations, custody means, or depriving person of freedom of action

not custodial: traffic stops, probation or parole meetings, detaining a personal during execution of valid search warrant

publix safety exception

please do not have to provide Miranda warnings if the custodial interrogation is intended to protect the public safety. typical scenario involves guns

Miranda waiver

after police deliver, Miranda warnings, suspects can still waive rights and talk to police. 75% of suspects waive their rights

express waiver test: suspect, must make clear statement that indicates they know their rights, they know they are waiving them, and they know the consequences of doing so

implied waiver test: weather, suspect, knowingly, wage rate is judge from the totality of circumstances

voluntary confessions

Supreme Court has held. Incriminating statements are only involuntary if officers engaged in course of conduct during interrogation, or the course of conduct caused the suspect to make the incriminating statement.

coercive conduct depends on the totality of the circumstances

exclusionary rule

fourth amendment contains no remedy for violations. James Madison suggested judges would create appropriate remedies for constitutional violations.

justifications: constitutional right (implied rule), judicial integrity (necessary to preserve integrity of government), deterrence (miranda, prevent future abuses)

good faith: applies, if law-enforcement officer acted in good faith

fruit of poisonous tree

exclusionary rule, bars, evidence directly obtained an illegal search, and seizure and evidence leader derived from it

exceptions: attenuation (weak connection), independent source (could've been obtained despite search), inevitable discovery (would've occurred anyway)

Direct exceptions to exclusionary rule

Collateral use of evidence, cross-examination use, knock, and announce

civil actions for constitutional violations

civil actions for official misconduct are more likely (tort)

US officers: plaintiffs can sue individual federal officers for constitutional torts. must prove officer was acting under color of authority, and officer action deprived plaintiff of a constitutional right

US gov: sovereign immunity

state officers: state tort actions, official immunity

local gov: respondeat superior. can sue local governments if they can prove officer, action, clause, violation of constitutional, right, or officer action, was according to department policy

judges and prosecutors: judges have absolutely unity, prosecutors have functional immunity

immunities

sovereign: Duction holds that King does not have to appear in court, government can only be sued with his consent

official: A public official charge my law with duties which called for the exercise of his.judgment or discretion is not personally liable to an individual, unless he is guilty of a wolf or malicious wrong

qualified: officers are protected if their action was objectively reasonable

functional: as advocates have absolute immunity, as admin, qualified

constitutional duty to protect

no affirmative duty to protect, please, officers do not have a legal duty to project private individuals from other private individuals

special relationship exception: when the government takes a person into custody, they have a special relationship with that person

state-created danger exception: Government creates a danger or making victim, more vulnerable to danger