Crim Pro 1C

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Author:
paul
ID:
23809
Filename:
Crim Pro 1C
Updated:
2010-06-16 17:42:27
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Search Seizure Without Warrant
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Description:
Crim Pro 1C - Valid Searches & Seizures Without a Warrant
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  1. What are the 8 EXCEPTIONS to the warrant requirement (i.e., search or seizure even w/o a warrant will not violate 4th Am?)

    "ESCAPIST"
    • E: Exigent circumstances
    • S: Search incident to arrest
    • C: Consent
    • A: Automobile
    • P: Plain view
    • I: Inventory
    • S: Special Needs
    • T: Terry "Stop and Frisk"
  2. EXIGENT CIRCUMSTANCES

    1) Evanescent evidence?
    2) Hot pursuit?
    1) evidence would DISSIPATE or DISAPPEAR in time it takes to get warrant

    2) HOT PURSUIT of FLEEING SUSPECT into his or a 3rd-party's home†

    †Evidence found in PLAIN SIGHT is admissible
  3. SEARCH INCIDENT TO ARREST

    1) Lawful arrest?
    2) Justifications?
    3) Timing limitations
    4) Geographic scope?
    5) Scope of automobile search?
    6) Location of suspect in automobile search?
    1) MUST BE LAWFUL

    2) SAFETY, PRESERVE evidence

    3) Search must be CONTEMPORANEOUS in TIME and PLACE

    4) May search suspect's WINGSPAN, and CONTAINERS within immeidate control (NY RULE: can search containers ONLY IF arrestee is believed to be ARMED)

    5) SCOPE OF AUTOMOBILE SEARCH

    • May search INTERIOR OF CABIN, including closed containers
    • BUT NOT the TRUNK

    6) LOCATION OF SUSPECT in automobile search

    • UNSECURED SUSPECT: May search within permissible scope (interior, containers, but not trunk)
    • SECURED SUSPECT: Search requires reasonable belief that vehicle contains EVIDENCE relating to the CRIME FOR WHICH ARREST MADE
    • NY RULE: Once suspect is SECURED, police cannot search CLOSED BAGS or CONTAINERS
  4. CONSENT

    1) Rule
    2) "Apparent" authority
    3) Shared premises
    4) Disagreeing co-tenants
    1) VOLUNTARY and INTELLIGENT consent waives warrant requirement

    2) requires REASONABLE BELIEF that consenting party had actual authority (e.g., the self-representing "live-in" girlfriend)

    3) ANY ADULT can consent to search of COMMON AREAS

    4) OBJECTING PARTY can prevent search of COMMON AREAS
  5. AUTOMOBILE SEARCHES

    1) Rule
    2) Where can police search?
    3) When is PC needed?
    1) PC that CONTRABAND or EVIDENCE OF CRIME will be found in vehicle

    2) ENTIRE VEHICLE including the TRUNK and all CONTAINERS (cf. search-incident-to arrest)

    3) PC needed BEFORE INITIATING SEARCH (not needed when car is pulled-over)
  6. PLAIN VIEW

    1) General rule (3 requirements)
    2) NY rule
    1) GENERAL RULE--search or seizure of item in plain view requires

    • lawful access to the PLACE where item can be seen, and
    • lawful access to ITEM ITSELF, and
    • criminality of item is IMMEDIATELY APPARENT (OBVIOUS)

    2) NY RULE--plain view of OBSCENE MATERIAL requires prior judicial authorization
  7. INVENTORY SEARCHES

    1) Requirements
    2) Common contexts
    1) REQUIREMENTS

    • regulations governing search are REASONABLE IN SCOPE, and
    • search itself COMPLIES with those regulations

    2) COMMON SITUATIONS

    • arrestees in JAIL
    • vehicles IMPOUNDED
  8. SPECIAL NEEDS JUSTIFY WARRANTLESS/RANDOM SEARCH/SEIZURE

    1) General rule
    2) Random drug tests
    3) Government employees' desks and files
    4) Students' effects in public schools
    5) Border searches
    1) Permitted where the SPECIAL NEEDS of law enforcement, government, and schools go BEYOND GENERAL INTEREST in law enforcement

    2) RANDOM DRUG TESTING is allowed in the following circumstances

    • railroad employees (following accidents)
    • customs agents
    • public school children engaged in ANY extracurricular activity (yes, even the chess club)
    • BUT NOT PERMITTED where primary purpose is to GATHER CRIMINAL EVIDENCE for law enforcement

    3) Permitted to investigate WORK-RELATED MISCONDUCT

    4) Permitted to investigate VIOLATIONS OF SCHOOL RULES

    5) NO ONE has 4th Amendment rights at the BORDER
  9. TERRY STOPS

    1) What is a Terry Stop?
    2) When are you "seized"?
    3) When is police pursuit a "seizure"?
    4) When does a traffic stop become a "seizure"? (dog sniffs)
    1) BRIEF detention or "SEIZURE" for investing suspicious conduct

    2) reasonable person would not feel FREE TO LEAVE or to DECLINE officers' request to ANSWER QUESTIONS

    3) POLICE PURSUIT = Seizure, when

    • pursued person SUBMITS TO OFFICER'S AUTHORITY by stopping,
    • police PHYSICALLY RESTRAIN individual
    • NY RULE: police pursuit is a seizure in itself

    4) TRAFFIC STOP = Seizure, when

    • reasonable person would not feel free to leave
    • dog "sniffs" UNREASONABLY PROLONG the stop
  10. TERRY FRISKS

    1) What is a Terry frisk?
    2) What can be seized?
    3) "Frisks" of cars?
    1) TERRY FRISK defined

    • PAT-DOWN of the body and outer clothing, for
    • WEAPONS, justified on belief that
    • suspect is ARMED and DANGEROUS

    2) WHAT CAN BE SEIZED?

    • WEAPONS
    • immediately RECOGNIZABLE CONTRABAND (requires no manipulation to know)
    • NY RULE: can seize item ONLY if it feels like a WEAPON

    3) if suspected is believed to be DANGEROUS, may search

    • PASSENGER CABIN
    • areas where a WEAPON may be PLACED OR HIDDEN
  11. TERRY STOPS AND FRISKS

    EVIDENTIARY STANDARD

    1) What standard applies?
    2) Terry Stop?
    3) Terry Frisk?
    1) REASONABLE SUSPICION (lower standard than PC)

    2) specific and articulable facts supporting belief of CRIMINAL ACTIVITY

    3) specific and articulable facts supporting belief that suspect is ARMED AND DANGEROUS

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