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Test 4 AS&S
Arrest Search and Seizure

Additional Criminology Flashcards




List areas that do not come under Fourth Amendment protection:
i) When the defendant does not have a reasonable expectation to privacy; and/or
ii) There is no governmental conduct
Explain “reasonable expectation of privacy” and relate it to search and seizure issues:
i) Defined by Harlan’s two-part test
a) Does the suspect have a subjective expectation of privacy
b) Does society recognize #1 as being reasonable
Define search, seizure, and arrest:
i) Search
a) Any governmental violation of a person’s reasonable and justifiable expectation to privacy
ii) Seizure
a) Any exercise or dominion of control over a person or thing.
b) Must be meaningful interference
iii) Arrest
a) The taking, seizing, or detaining of the person by
1) Actual physical touching; or
2) Any other act that indicates an intention to take the person into custody
Identify the two types of arrests and differentiate between the two:
i) Formal
a) The taking, seizing, or detaining of a person by actual physical touching or any other act that indicates an intention to take the person into custody
ii) De Facto
a) When the circumstances of the police contact would lead a reasonable person to believe that he or she was not free to leave
b) Determined by:
1) Length of stop
2) Degree of force
3) Forms of confinement (handcuffs, cruiser)
4) If the suspect is moved from the scene
Explain the consequences of Fourth Amendment violations both to the officer and to the case:
i) Consequences against the Officer:
a) Civil liability
b) Criminal liability
c) Employment sanctions
ii) Consequences against the case:
a) Evidence may be excluded via the Exclusionary Rule
1) Fruits of the Poisonous Tree
Define and explain the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine:
i) Exclusionary Rule
a) A constitutional protection to:
1) Protect the Fourth Amendment
2) Insure judicial integrity
3) Deter future police misconduct
b) If law enforcement officers violate one of the provisions of the Bill of Rights, then the evidence obtained in violation of the Amendment may not be used at trial
c) First adopted in Weeks v. U.S. (1914)
d) Applied to states in Mapp v. Ohio (1961)
ii) Fruit of the Poisonous Tree Doctrine
a) An extension of the Exclusionary Rule
b) States that any evidence acquired indirectly from evidence which was illegally obtained shall not be admitted into court
Define and recognize two exceptions to the Exclusionary rule:
i) Good Faith Exception
a) When officers are acting in reasonable reliance on a warrant issued by a neutral and detached judge, any evidence obtained by the officer’s actions will be admissible even when the warrant is later declared to be unconstitutional
ii) Inevitable Discovery Doctrine
a) Illegally obtained evidence will not be suppressed if the prosecution can establish by a preponderance of the evidence that the evidence would have been eventually discovered by other lawful means
Arrest, Search, and Seizure (106) Study Guide 3
iii) Independent Source Doctrine
a) If the prosecution can establish that the illegally obtained evidence was also derived from a separate source, then the exclusionary rule will not have to be applied
Explain what is protected in the Fourth Amendment prohibition against unreasonable searches and seizures:
i) *The rights of the people to be secure in their:
a) Persons
b) Houses
c) Papers
d) Effects
ii) No warrants shall be issued but upon:
a) Probable cause
b) Supported by oath or affirmation
c) Particularly describing the place to be searched and person/objects to be seized
* Listing Question
Define and recognize examples of Curtilage:
i) Curtilage
a) The area immediately surrounding a dwelling house
b) It is necessarily and habitually used for family and domestic purposes
ii) Examples:
a) Lawns (typically identified by landscaping and/or fencing)
b) Area immediately surrounding a house to include separate buildings
c) Other areas in the immediate vicinity of the home where the owner has taken reasonable steps to protect the property from public view
d) Does NOT include driveways and sidewalks unless blocked by a locked gate
Identify actions that constitute acts by governmental agents:
i) Acts executed directly by a law enforcement officer or other governmental employee
ii) Acts executed by a private citizen at the direction of a governmental employee,, including a law enforcement officer
State and explain the federal and state constitutional requirements that are needed in order to have a valid search warrant:
i) Must be issued by a neutral and detached judge or magistrate
ii) The search warrant must be supported by an affidavit that provides probable cause to believe that evidence that is crime-related is located in the particular place to be searched
iii) The search warrant and affidavit should identify the person or place to be searched with particularity
iv) The search warrant and affidavit should describe the items to be seized with particularity
Identify the individuals who may issue a warrant in Nebraska:
i) Federal Magistrate (Statewide)
ii) District Court Judge (Statewide)
iii) Court of Appeals Judge (Statewide)
iv) Supreme Court Justice (Statewide)
v) County Court Judge (Statewide)
vi) Clerk Magistrate (May issue in county only)
Define probable cause in the context of search warrants and arrest warrants:
i) A fair probability that contraband will be found in the placed to be searched based on the totality of the circumstances (51% more likely than not)
Recognize situations where hearsay informants need to be corroborated to establish probable cause in order to obtain a warrant and those that are presumptively reliable:
i) Informants requiring corroboration:
a) Anonymous & Confidential Informants
ii) Presumptively reliable sources:
a) Victim
b) Witness
c) Citizen
d) Accomplice
e) Suspect
f) Canine
Identify the difference between regular search warrants and telephonic search warrants:
i) Telephonic Differences
a) Applicants must contact the County Attorney
b) The County Attorney contacts the judge
Arrest, Search, and Seizure (106) Study Guide 5
c) The judge contacts the applicant
d) The judge records the testimony via audio recorder
e) If the recording is lost, the warrant is invalidated
State the scope of a search when executing a search warrant:
i) The scope of the search is any and all areas that may produce the smallest item that you have described in your affidavit
a) Once the items in the warrant have been found the search must stop
ii) The seizure of contraband found in plain view during the execution of the search
State the statutory requirements of executing a search warrant:
i) Officers have 10 days to execute and return a warrant after its issued
ii) Warrants must be executed between 0700 & 2000 unless otherwise noted
iii) Only officers named in the warrant should execute the warrant
iv) Officers must knock and provide sufficient time for a response before entering
v) After execution of the warrant, officers must leave a copy of the warrant and a property receipt/list
Identify the individuals who may be detained when executing a search warrant and the circumstances surrounding their detention:
i) Residents
a) May be detained the entire time
b) May be handcuffed
ii) Non-residents
a) May be detained for short interviews
b) Further detention requires a connection between individual and items subject to seizure
c) Exception: If open criminal activity is observed they may be detained for investigation
Identify and explain the Nebraska requirements for obtaining an arrest warrant:
i) Requirements for an arrest warrant:
a) Probable cause that a crime has been committed to include where and when
b) Describe the offense for which the arrest is justified
c) Describe the person to be arrested (Name not required)
d) It must be signed and dated (Arrest warrants are prepared by the prosecutor’s office)
Recognize the authority that is associated with an arrest warrant and explain where arrests can be made:
i) Law enforcement
a) Any law enforcement officer, including security guards, may arrest a suspect for violating any state law or city ordinance
ii) Officers outside jurisdiction
a) Any law enforcement outside their jurisdiction can make an arrest and transport the suspect back to the county in which the crime occurred
iii) Citizen Arrest
a) Any person not an officer may effect a citizen’s arrest for petit larceny or a felony if there is reasonable grounds to believe that the person arrested is guilty of such an offense
Explain when arrests may be made in public, in private residences, and in third-party residences:
i) Public places
a) With or without an arrest warrant
b) A warrantless arrest may be made for felonies, misdemeanors committed in the presence of the officer, misdemeanors committed outside the officer’s presence (see # 26), and infraction exceptions
ii) Private residence
a) May enter suspect residence when officer has reasonable grounds to believe that the suspect is inside
b) Must have an arrest warrant
iii) Third-party residence
a) Officers with an arrest warrant may not enter a home of a third-party to look for a suspect without a search warrant, consent, or hot pursuit
Define voluntary contact and care-taking contacts. State the legal evidentiary requirement, the scope, and identify limitations of each:
i) Voluntary
a) The voluntary conversation that a law enforcement officer has with anyone at any place where the officer is legally entitled to be
b) Limitation:
1) Cannot prevent the subject from leaving
Arrest, Search, and Seizure (106) Study Guide 7
c) Scope:
1) May ask for ID and ask questions as long as the subject is cooperating
ii) Care-taking
a) Permits officers to make contact with a vehicle and the driver/passengers when the vehicle becomes disabled or involved in an accident or otherwise stranded
b) Limitation:
1) Officers cannot use force or search the person or his/her belongings without consent or exigent circumstances
Define and explain the difference between reasonable suspicion and probable cause:
i) Reasonable suspicion
a) 33%
b) More than a hunch, less than probable cause
ii) Probable Cause
a) 51% or greater
b) A crime has been committed, is in progress, or is about to be committed
Identify when a warrantless arrest may be made in Nebraska:
i) *Felonies
ii) *Misdemeanors committed in the officer’s presence
iii) *Misdemeanors committed outside the officer’s presence if any of these conditions exist:
a) Flight risk
b) Danger to self or others
c) Destruction of evidence
d) Domestic assault
e) Violation of a protection order
f) Shoplifting
iv) *Infraction exceptions
a) Refusal to provide a name
b) Refusal to sign a citation
* Listing Question
Define, explain the scope, and recognize examples of the following exceptions to the Search Warrant requirement:
i) Search Incident to Arrest
a) Officers can search the suspect and anything within his reach where a weapon can be obtained or where evidence can be concealed or destroyed
ii) Terry Stop/Frisk
a) Officers may stop and detain a suspect where they have reasonable articulable suspicion that criminal activity is afoot; and
b) Officers may conduct a limited frisk of the suspect’s outer clothing if the officer has reasonable articulable suspicion to believe that the suspect is armed and presently dangerous
iii) Plain Feel Seizures
a) Where an officer lawfully pats down a suspect’s outer clothing and feels an object whose mass makes it immediately apparent that it is contraband
b) If so, the officer may seize it
iv) Probation Searches
a) When an officer has reasonable articulable suspicion that a probationer, who is subject to search condition, is engaged in criminal activity, then a warrantless search is permissible
v) Consent
a) A suspect can give his or her consent to accompany an officer or to allow the officer to search and/or seize an item, but the consent must be voluntarily given
b) Voluntariness is determined by the Totality of the Circumstances
vi) Plain View
a) Warrantless seizures of evidence which is there for the officer to see from a place that the officer has a right to be
vii) Inventory
a) Once a law enforcement officer has either lawfully arrested a person or lawfully impounded a vehicle, that law enforcement officer or agency may make an administrative and warrantless search of the person’s effects and/or contents of the automobile
b) Any contraband found during this administrative search can be seized based upon the plain view exception
Arrest, Search, and Seizure (106) Study Guide 9
viii) Carroll Doctrine / Automobile
a) Where law enforcement officers have probable cause to believe that an automobile contains contraband, then the warrantless seizure and subsequent search of that automobile is allowable
Define Exigent Circumstances (Emergency, Fire Scene, Evanescent Evidence, and Hot/Fresh Pursuit):
i) Exigent circumstances
a) Emergency situations requiring swift action to prevent:
1) Imminent danger to life or serious damage to property, or
2) Forestall the imminent escape of a suspect, or
3) Prevent the destruction of evidence
b) Emergency circumstances
1) Actions taken solely on the need to protect or preserve life or avoid serious injury
c) Fire Scene Exception
1) A burning building creates an exigency that justifies the warrantless entry of fire officials to fight a fire and once the fire officials are in the building, they may remain there for a reasonable time to ensure the fire will not reignite and to investigate the cause of the fire
d) Evanescent Evidence
1) Warrantless entries and seizures are permissible where there is danger that the evidence will be removed, destroyed or lost if immediate action is not taken by the officer
e) Hot/Fresh Pursuit
1) Warrantless entries and seizures are permissible where the suspect has committed a serious crime and the entry is necessary to prevent the escape of a subject
Define legal requirements and procedures regarding the impoundment of vehicles:
i) Requirements
a) Presence of a vehicle on the street which jeopardizes public safety; or
b) The vehicle cannot be legally operated on the street; or
c) The driver has been arrested
ii) Purpose of the vehicle inventory
a) To safeguard property
b) To protect the officer from a lawsuit
c) To protect the security of the impound lot
d) To identify the suspect
Know the legal requirements in order to prepare a receipt/inventory after the execution of a search warrant:
i) Definition of receipt/inventory
a) A list of property seized and it describes the items and indicates where the items were seized.
ii) Requirements
a) The executing officer must leave a copy of the inventory at the location of the search along with a copy of the warrant
b) The inventory must be completed and submitted within ten days of the approval of the warrant
Know the legal requirements of an affidavit in order to obtain a search warrant:
i) The affidavit must describe enough facts to show that there is probable cause to believe that a crime has been committed
a) Identify parties involved
b) Establish the commission of a crime
c) Must include a statement of time to reflect the information is fresh and that the likely of finding the contraband is high
d) The affidavit must describe enough facts to show that there is probable cause to believe that the evidence sought is related to the crime
e) The information must specifically link the contraband to the area described
f) Venue for location of evidence should be established
g) Officers must ensure that the information relied upon is credible
Identify procedures to follow to obtain a search warrant:
i) Requesting officer establishes probable cause for a search warrant
ii) Requesting officer submits an affidavit to the court in either written form or telephonically
a) Must be affirmed under oath
iii) Judge reviews and approves warrant once probable cause has been established
iv) Named officer executes search warrant within 10 days
Define the necessary requirements to search a person, the justifications for said searches, and various restrictions of such searches:
i) Consent
a) Must stop upon request of subject
ii) Search Incident to Arrest
a) Search must be close in time to incident of arrest
iii) Search Warrant
a) Must possess a valid search warrant and can only search within the scope of the warrant
iv) Probation Search
a) Must possess reasonable articulable suspicion that a probationer is engaged in criminal activity
Define the legal requirements for seizing physical evidence from a person’s body:
i) Strip search
a) Requires particularized suspicion that the arrestee has contraband concealed on the person below the clothing
b) Must be same sex
ii) Body cavity search
a) Must have a warrant if no exigencies are present
b) Must be conducted by medical personnel
Katz v. U.S. (1967):
i) Broadened the definition of a search
ii) Created Judge Harlan’s test
a) Does the subject have a subjective expectation of privacy?
b) Does society think that the subject's expectation is reasonable?
Weeks v. U.S. (1914):
i) Excludes all evidence that was seized by the feds after a 4th amendment violation
ii) Police entered the home of Fremont Weeks and seized papers to convict him of transporting lottery tickets through the mail without a search warrant. Weeks took action against the police for the return of his private possessions
Mapp v. Ohio (1961):
ii) The landmark case that helped to overturn the silver platter doctrine was Mapp v. Ohio (1961). Cleveland, Ohio police officers forcibly entered the home of Dollree Mapp (a well known underworld figure) with what they said was a search warrant. Ms. Mapp had time to phone her attorney and then asked to see the search warrant, which was waived in front of her. A search of the house commenced with officers looking for a bombing suspect but who came across several sexually explicit books, photographs, drawings, and gambling records (all of which were considered illegal contraband). She was then arrested for misdemeanor gambling but was later indicted for violating Ohio state law prohibiting "lewd, lascivious, or obscene material." During the trial, the police department was unable to supply a copy of the search warrant, which Ms. Mapp argued was not legitimate.
U.S. v. Leon (1984):
i) When officers are acting in reasonable reliance on a warrant issued by a neutral and detached judge, any evidence obtained by the officer's actions will be admissible even when the warrant is later declared to be unconstitutional.
ii) Unless the following:
a) Affidavit is so lacking in probable cause that no reasonable officer would have relied on it
b) The warrant is defective on its face
c) The affiant lied or misled the magistrate
d) The magistrate abandoned the neutral and detached
Terry v. Ohio (1968):
i) Officers may stop and detain a suspect where they have reasonable articulable suspicion that criminal activity is afoot, (RAS I), and
ii) Officers may conduct a limited frisk of the suspect's outer clothing if the officer has reasonable articulable suspicion, (RAS II), that the suspect is armed and presently dangerous
iii) RAS is based on the Totality of Circumstances Test:
a) Did RAS exist in the eyes of a reasonable person in light of all the circumstances known to the law enforcement officer at the time of the stop?
Hiibel v. Sixth Judicial District Court of Nevada (2004):
i) The court ruled that anyone refusing to identify themselves during a Terry Stop may be arrested for obstructing a peace officer
ii) Nebraska’s statute, §29-829, does not allow for an arrest based upon mere verbal non-compliance; there must be a physical act
a) Officers may have a local ordinance which would still permit arrest
Chimel v. California (1969):
i) Decided the area can be searched within immediate control but must be limited to area within immediate control
ii) When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or affect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
New York v. Belton (1981):
i) Ruled that once a recent occupant of an automobile has been arrested, the entire passenger compartment of that automobile and any unlocked containers can be searched incident to arrest
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