Criminal Law Exam 2 Concepts

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if the person is *free to leave*, the interaction is ... 

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**NOT** a seizure 

non-seizure interactions do not require what?

No legal justifications, probable cause, or reasonable suspicion

why do non-seizure interactions not require legal justifications, probable cause, or reasonable suspicion

the interactions do not implicate the 4th amendment

What can turn a non-seizure encounter into a seizure?

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\-orders person to remain

\-wont return requested documents

\-blocks path to leave

what is a 4th amendment seizure?

An act by law enforcement restricting a person’s freedom to leave

what is necessary for a 4th amend seizure?

reasonable suspicion

4th amend seizure requires reasonable suspicion that the person has...

committed, is committing, or is about to commit a crime.

what does reasonable suspicion have to be based on?

objective reasons

Reasonable suspicion vs. probable cause

Reasonable suspicion requires less information and evidence than probable caus

duration of stops

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\-usually lasts a few minutes

\-Although a stop is always temporary, a stop could result in the officer gathering sufficient evidence to justify an arrest.

interrogation during a stop and miranda rights

an officer does not need to Mirandize a person before asking questions but does need to if the stop results in an arrest.

there is no legal obligation to respond to an officer/interrogation during a stop except when...

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\-They must identify themselves if there is a state statute requiring such identification.

\-A driver must show a license and registration.

use of force during a stop

degree of force depends on the circumstances of the stop, but police may use reasonable force if necessary

arrests are defined as what?

a 4th amendment seizure

what is the justification for an arrest?

probable cause

probable cause for an arrest is based on what?

the totality of the circumstances

factors included in totality of circumstances

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\-Officer's observation of what appears to be criminal conduct.

\-Time of day or night.

\-How close in time and distance the suspect is to a location where a crime has just been committed.

what strengthens the argument that probable cause exists for an arrest?

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The *MORE* of these types of factors that are present, *and* the *MORE CREDIBLE* the information about these factors

what comes first, probable cause or the arrest?

probable cause

why must probable cause exist before the arrest?

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\-otherwise the arrest is illegal

\-the arrest cannot be legally justified retroactively.

in issuing an arrest warrant, a judicial official is what?

confirming the existence of probable cause for the arrest, prior to the actual arrest

if there is an arrest warrant, who can serve it?

any officer can serve it, even if the serving officer has no involvement in the case.

If the person named on an arrest warrant is in a public place, can an officer arrest him?

yes

can an officer with an arrest warrant may enter the home of the person named in the arrest warrant, to make the arrest?

yes

what does an officer need to have and do before entering a home of the person named in an arrest warrant to make the arrest?

The officer should have some reason to believe the person is in the home, and the officer should knock and announce his presence before entering

why are most arrests made without an arrest warrant?

probable cause did not exist until the perpetrator committed the offense, and then the person was arrested at the scene of the crime.

what are the steps in an arrest procedure?

\-An arrest is the taking of a person into law enforcement custody.

\-Arresting officers should identify themselves as law enforcement officers if that is not obvious.

\-Officers should tell arrestees that they are under arrest.

\-Officers should inform arrestees of the cause of an arrest, although an officer need not provide a specific statutory basis for the arrest.

\-Handcuffs are applied in virtually all arrests.

\-An officer must promptly bring an arrestee before a magistrate or other judicial official. The judicial official may then release the arrestee on bail or personal recognizance or may send the arrestee to jail

what is a frisk?

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A pat-down of the __*outside*__ of a person's clothing (and sometimes the outside of bags the person is carrying).

what is the purpose of a frisk?

to determine whether the person is carrying a weapon.

what is the required justification for conducting a frisk?

reasonable suspicion that a stopped person is armed and dangerous.

If, while frisking, the officer feels an object which feels like a weapon or drugs/other contraband, what can he do?

may reach inside and pull out the object.

what is a vehicle frisk?

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An officer may take a quick look inside a stopped vehicle, limited to areas where a weapon could be hidden, and quickly grabbed by the suspect __IF__ the officer has reasonable suspicion that the driver or a passenger may grab the weapon during the vehicle stop

what is a house frisk?

When officers have the right to enter a place to serve an arrest warrant or carry out some other responsibility and have reason to believe that there may be dangerous persons inside, the officers may check areas of the premises that are large enough to contain a person, to ensure their safety as they serve the arrest warrant, etc

what is the constitutionality of suspicionless/special needs stops and searches?

based on the reasonableness language of the 4th Amendment rather than by reasonable suspicion.

When is a suspicionless search and stop permitted?

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only if there is a legally recognized practice of conducting such stops/searches, based on balancing a “special need” *safety concern*, against a minimal, non-arbitrary intrusion upon the individual.

what is reasonable suspicion?

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A *lesser* level of evidence of a crime (less than probable cause), that legally justifies a *lesser* level of police action

an example of a crime that requires reasonable suspicion

stop or frisk

what does reasonable suspicion consist of?

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\-facts and circumstances and other evidence indicating that a person has committed is committing or is about to commit criminal activity

\-some factual basis for suspicion

where is reasonable suspicion established?

Terry v Ohio

what is probable cause?

This means to have evidence that is sufficient in quantity and credibility to justify an arrest or search

probable cause for an arrest

Objective information exists showing it is probable (more likely than not) that the person to be arrested has committed a crime.

probable cause for a search:

Objective information exists showing it is probable (more likely than not) that evidence of a crime can be found on the person or in the place to be searched

what is the exclusionary rule?

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\-Evidence that was obtained through governmental/police actions or procedures that violate the U.S. Constitution is considered tainted and will be excluded

\-The evidence *cannot* be used against the defendant

what is the intention of the exclusionary rule?

to ensure Constitutional rights are protected in criminal enforcement and the presumption is that officers will not take actions that weaken the case against the suspect.

is police use of deadly and non-deadly force considered a 4th amend seizure?

yes

what is the most important factor for use of force?

whether the suspect posed an immediate threat to the safety of the officers or others.

what does the reasonableness of the degree of force used by the officer depend on?

the danger presented by the arrestee or others at the time

the degree of force must be proportionate to what?

the danger

3 factors in police use of force

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\-The severity of the crime at issue.

\-Whether the suspect poses an immediate threat to the safety of the officers or others, and

\-Whether he is actively resisting arrest.

what is deadly force?

may be used only if an *objective* officer (not necessarily the actual officer) in the circumstances would reasonably believe that deadly force is *necessary to protect the officer or others from death or serious physical injury*

what is non-deadly force?

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Officer presence, officer commands, physical touching, handcuffing, holds, “taser” stuns, pepper spray, strikes below shoulder level, etc. (These are types of force that are not expected to and typically do not cause death)

what are the two tests for determining whether police activity is considered 4th Amendment search?

\-physical intrusion test

\-reasonable expectation of privacy test

what is the physical intrusion test?

If there is a physical penetration or intrusion (also called “trespass”) into “persons, houses, papers, …effects…,” then the action is a 4th Amendment search and requires justification

what is the “Reasonable expectation of privacy” test?

An act violates a reasonable expectation of privacy __IF__ the person has shown an expectation of privacy in what was searched, __AND__ that person’s expectation would be considered reasonable by society.

Why was the "reasonable expectation of privacy" standard needed in the modern era?

\-Digital technology has raised questions never imagined by the writers of the Constitution, nor even by the courts as recently as a generation ago. 

\-We must now determine whether the 4th Amendment protects various types of digital information and communication that did not exist in earlier times. 

\-For example; ​​collecting metadata of phone calls, emails, and other communications, GPS tracking, facial recognition technology, and so on.

what are the two exceptions to the reasonable expectation of privacy standard?

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if the evidence/information which the police obtain either:

\-Has been shared with a third-party

\-Was in a public location

are vehicle stops considered a 4th amendment seizure?

yes

who in the car is considered to be seized when a vehicle is stopped by police?

the driver and all passengers

is reasonable suspicion or probable cause required for vehicle stops?

reasonable suspicion

Examples of typical circumstances providing reasonable suspicion of an offense to justify a vehicle stop

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\-weaving

\-speeding

\-red light or STOP sign violation

\-the vehicle (or driver or passenger) matches a description or other information related to a non-traffic offense.

During a justified stop what can officer can order the people in the car to do?

\-order both driver and passengers out of the vehicle 

\-order persons to remain in the vehicle

\-The driver *must show license and registration*

\-A passenger *can be required to produce an I.D*. if there is particularized *reasonable suspicion of crime* as to the passenger as an individual, beyond his mere presence in the stopped vehicle.

when can a driver be frisked?

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__IF__ there is reasonable suspicion that he/she is armed. A vehicle stop does not automatically authorize an officer to frisk the driver or passengers.

searches during vehicle stops

\-Probable cause to believe that the vehicle contains evidence of a crime.

\-Evidence in plain view.

\-Plain smell.

\-Evidence discovered during a valid frisk of a person or the vehicle.

\-An officer may ask the driver or owner for consent to search.

\-K-9 sniffs of the vehicle’s exterior may be conducted during a vehicle stop so long as they do not unjustifiably prolong the stop. A K-9 alert provides probable cause to search the vehicle.

\-If a driver or passenger is arrested, a search of the vehicle as part of the search incident to arrest is justified IF there is reason to believe that evidence of the crime of arrest is in the vehicle.

what is the duration for a vehicle stop?

May continue for a reasonable amount of time as needed to determine facts, identity, circumstances, etc. Usually, a stop lasts 20 minutes or less, but an investigation may justify more time.

what does an extension for additional time for a stop require?

separate, additional reasonable suspicion.

is a vehicle checkpoint still a 4th amend stop and seizure?

yes, even though individualized reasonable suspicion is not required

types of suspicionless/special needs stops and searches

\-vehicle checkpoints

\-TSA checks

\-drug testing of students/workers

why are vehicle checkpoints not "unreasonable searches and seizures" under the 4th amend?

They balance important public safety concerns against minimal intrusions on the stopped persons

the operation of a vehicle checkpoint

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\-At a checkpoint, the officer will ask the driver for their license and registration. While speaking with the driver at the checkpoint, the officer looks, listens, and smells for evidence of impaired driving

\-If the officer notices evidence of impairment or other offenses, the driver will be required to pull to the side for further investigation. The vehicle is then subject to a stop based on reasonable suspicion arising from the evidence that caused the officer to seek further investigation.

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what is the primary purpose of the vehicle checkpoint stop?

to detect impaired drivers in order to promote public safety on the roads.

Plain view searches/seizures of evidence is what type of search?

warrantless

An officer may make a plain view seizure of an item IF....

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\-the officer has a right to be at the place where he is when he views the item, AND…

\-the officer has a right to be at the place where he is when he actually seizes the item, AND…

\-it is obvious, *without moving the item,* that it is criminal evidence or contraband. *The criminal nature of the item must be in plain view*.

what is the rationale for allowing "plain view" searches and seizures?

that an officer should not need to ignore criminal evidence that is obvious and immediately accessible.

what is the rationale for requiring that the criminal nature of the item have been in plain view without moving items around?

to prevent entries of a premise from becoming random searches of the premise.

what type of search is a consent search?

warrantless

A consent search of a person, his belongings, his vehicle, his home, etc. may be conducted IF

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\-the person consents

\-his consent is voluntary (not based on duress or inability to understand)

\-is the owner or otherwise has legal control of the item or the place or the vehicle being searched.

can a person give consent to search the entirety and/or portion of something?

yes

can a person withdraw consent after giving it?

yes unless evidence has been discovered which would provide probable cause for the search to continue

When multiple persons have rights to the same property, the consent of only one may not be sufficient to justify a search or may be sufficient for a search of what?

only their parts of the property

can an officer not alert a person that he can refuse to give consent?

yes

When can officers enter a home or other premise without a search warrant?

in a criminal or medical emergency

just because officers had authority to enter a premise can they search the entire premise?

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\-not necessarily

\-The scope of an exigent circumstances search inside the premise is limited. 

to what extent can officers search for medical/criminal emergencies?

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\-Officers may search only to the extent necessary to investigate the emergency, and to ensure the safety of the officers (“security check”)

\-Officers may seize evidence related to the exigency

\-criminal evidence that is in plain view inside the premises, even if unrelated to the original exigency, may be seized.

what are the two major rationales for a search incident to arrest?

\-to protect the officer and -to ensure that the arrestee does not destroy evidence.

what is necessary to conduct a "search incident to arrest"?

an actual custodial arrest

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what may be included in the search in search incident to arrest cases? 

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\-May include a search of the person being arrested, their belongings, and their lunging area. 

\-May also include a search of the person’s vehicle *only if* the arrestee was in the vehicle at the time, and if it is reasonable to believe that evidence of the *crime of arrest* is in the vehicle.

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can a cell phone be automatically searched as part of a search incident to arrest? 

no

what must police do before being able to search a cell phone?

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\-When a cell phone or other such device is seized during an arrest, police must obtain a search warrant before searching it (__Riley__ v. __California__) 

\-Riley court held that S.I.T.A. is insufficient to justify access to an arrestee’s cell phone because of the enormous amount of information on persons’ cell phones

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is taking DNA from an arrestee justified as part of a search incident to arrest? 

yes (Maryland v King)

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does taking DNA from an arrestee require the police to obtain a search warrant?

no (Maryland v King)

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what are the issues raised by Maryland v King? 

\-Should defendants’ DNA be sent to databases only if and when they are convicted? 

\-Should the Court likewise require a search warrant for taking DNA upon arrest? 

\-Should law enforcement be allowed to use DNA from a database to identify a criminal who is related to the person whose DNA is in the database? (“Family DNA”)

what did Miranda v Arizona establish?

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\-The duty of the police to alert a person in custody to this Fifth Amendment right, prior to any attempt to interrogate the person.

\-The right of a person in custody to choose to invoke or to waive his/her 5th Amendment rights. 

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requirements for Miranda: 

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prohibits interrogation of a person in custody *unless*:

\-The person has been read __Miranda__warnings about his right to remain silent and his right to have an attorney, *and*

\-The person has *waived* (voluntarily given up) those rights.

when does Miranda require that an interrogation cease?

if the person invokes the right to remain silent or to have counsel, even if the person previously waived the Miranda rights and interrogation has begun.

the warnings that make up Miranda

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\-You have a right to remain silent.

\-Anything you say can be used against you.

\-You have a right to speak to an attorney and have an attorney present during any questioning.

\-If you cannot afford an attorney, one will be appointed for you without charge.

When are Miranda warnings required?

before custodial interrogation

why are miranda warnings needed?

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\-History of intimidation and mistreatment.

\-The person under arrest is typically alone, incommunicado.

\-Potential for physical or psychological abuse.

\-Inherently coercive environment.

\-Potential for false confessions.

what is the public safety exception to Miranda?

\-Imminent public safety threat. 

\-In these circumstances, officers may conduct a limited interrogation of a suspect, in which the suspect is questioned about the public safety threat without having Mirandized them. 

\-After interrogation relating to the public safety danger, officers must give __Miranda__ warnings before interrogation which concern the investigation of a suspect’s criminal liability but which does not concern an imminent threat to public safety.

how must vehicles be stopped for vehicle checkpoints?

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on a __*non-discretionary*__ basis, (stop vehicles according to a numerical pattern such as every 2nd vehicle or every 3rd vehicle)

where in the warrant does the officer states the probable cause information?

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“Affidavit of Probable Cause”