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Doctrinal test for a "seizure" of property or a person
Property - A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property - Karo
- Person - The mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient - Hodari D.
- - "Show of Authority" test - A person also has been seized only if a reasonable person would have believed that he was not free to leave.
- - The show of authority itself does not create the seizure. After the show of authroity, one needs physical force or submission.
Test for a "search"
- 1. An actual expectation of privacy (subjective) AND
- 2. that society is prepared to recognize as reasonable.
- - Affirmative steps to protect privacy
- - Therefore not met if not concealed
- - Ex: unconvered windows, on front portch
- - Also not met for abandoned property
- - Ex: discarded waste, uncollected mail
- - Includes denying ownership upon police inquiry - If police ask "is that backpack yours", and the person says "no", the police can say well that is abandoned property and take it. - then find out that it is the person's backpack.
- 1. Argue by analogy to precedent holding that a search did occur (e.g., wiretap, thermal imager viewing of home, explatory squeeze of luggage)
- 2. Argue by analogy that search did not occur (e.g., informer or secret agent, pen register, canine sniff, flyover surveillance, curbside trash)
Reliance on informant
Must describe factual basis, especially any corroboration of information provided
Informant must be somebody who the police can believe
Identified citizen reports are credible
Anonymous tip is ok as long as specific facts are described and it is corroborated
The Warrant Requirement (Arrest warrants)
Warrantless arrests are presumptively reasonable other than arrests in a home
Subject to exceptions - e.g., exigency
Force Used to Make Arrest
Police officers are immuned unless they violated a clearly established right
The Warrant Requirement (Search Warrants)
A warrantless search is presumptively unreasonable but there are many exceptions
Elements of a valid warrant
- 1. Probable cause (substantively)
- 2. Oath or affirmation (procedurally)
- 3. Particularity (procedurally) - particularly describing the place to be searched and the items to be searched for and seized.
- 4. Neutral and detached judicial officer (procedurally)
Usually what is litigated is whether there was PC and whether there was particularity.
Why require/prefer Warrants?
Separation of powers, Johnson
Unlike judges, police are engaged in the often competitive enterprise of fettering out crime.
Warrant to Search for What? (Particularity)
Mere evidence of crime can be sought
Need PC that the things being sought are at the location to be searched
Once there, police can search anywhere that the item being sought could be found
totality of the circumstances test
"Knock and Announce" Rule and Exceptions
Part of Reasonableness
Wait - reasonable amount of time (depends on the type of warrant)
- 1. If no breaking; e.g., trickery (don't have to knock and announce if you can trick them into getting into the house)
- 2. No-Knock warrant in advance - gun fight if we knock and announce
- 3. No-Knock entry with reasonable suspicion that there will be threat that if they knocked and announced - Richards v. WI
Remedy - only suits, exclusionary rule doesn't apply
Manner of Execution (Warrant)
- Also evaluated for reasonableness
- 1. e.g., property damage - Ramirez
- 2. securing the scene, Summers - Mena
- 3. Level of violence, intrusiveness, duration
- 4. Private citizen assistance - over the line
- 5. Media involvement - over the line
Three types of searches
- Full blown searches
- Terry frisks
- No searches
Three types of seizures:
- Terry stops
- Neither of the above two/Encounter
Terry Doctrine explain
-does the 4th Am apply?
Exception to the Warrant Requirement
Stop - not an arrest, but also not free to leave
4th Am Does Apply
- - Seizure - yes because the "stop" is a seizure
- - Search: Katz REP? - yes - right of the people th be secure in their person. Frisk is a search
- - Warrant? - Pragmatically speaking it is impractical to get a warrant for a brief stop and frisk.
- - Reasonable? - Is it a reasonable search and seizure?
- - It is reasonable if it is limited in nature (limited in time and scope)
- - Also only reasonable suspicion is required to conduct Terry stop.
- How to determine reasonable suspicion
- 1. specific articulable facts plus rational inferences
- 2. which objectively justify the intrusion
- a. Justification for frisk is solely for safety, not evidence - Minnesota v. Dickinson - they excluded the evidence
- b. frisk is derivative of the stop - can't pat someone down just to find a weapon
- i. stop comes first. If there is not a valid stop then there shouldn't be a frisk
- Stop and frisk can have overlapping facts
- - investigating armed robbery - can do frisk
- - investigating shoplifting - cannot do frisk
- test (RS - Quantity of Information)
Totality of the circumstances
Three Levels of 4th Amendment "Seizures"
- Encounter - unrestricted (Mendenhell and Drayton)
- Stop - RS
- Arrest - PC
Three Levels of 4th Amendment "Searches"
Not-Search - unrestricted (Something that is not a search under Katz): Ex: flying over with a helicopter, looking in trash, using phone number dialed (pen register), getting information from friends
Frisk - RS
Search - PC