Cars/Containers
When can police search someone's car once the occupant has been arrested?
Gant Test:
Once an occupant is secured, police may only search when it is reasonable to believe the vehicle contains evidence of the arrest.
Warrant Exceptions
1) Probable Cause
2) Search Incident Arrest
3) Car and Containers (usually with S.I.A.)
4) Exigent
5) Consent
6) Plain View
What do you need to make an arrest in public?
Probable Cause.
Who determines probable cause when there isn't an arrest warrant.
Elements to justify a Terry Stop
-Police must have reasonable articulable suspicion that crime is afoot
-Must identify themselves as police
Fruit of the poisonous tree applied to which Amendments?
-4th
-5th
-6th
But NOT Miranda (only in limited manner)
Thorton Rule
As long as arrestee is a recent occupant of a vehicle (guy was stopped after he left and walked away from his car) officers may search that vehicle incident arrest
When can police complete an inventory search of a vehicle?
When there are established procedural rules/guidelines for the practice.
What determines the scope of the warrant?
-Items listed with particularity on the warrant, or where the items could be found.
Elements of a Terry Frisk
Can police set up a road block for alcohol tests for random vehicles?
Yes.
How is this different than setting one up to search for drugs.
How to determine if something is a car or a home?
-Licensed?
-Mobility (on blocks?)
-Access to public roads
-Are there utilities hooked up?
Plain View Doctrine
1) Police lawfully on scene
2) item in plain view
3) Immediately apparent the item's criminality
Exceptions to the knock and announce?
What is the standard for the exception to knock and announce?
What is the remedy for violating knock and announce?
-Police in danger, Destruction of evidence, Prisoner escapes and hides in home
-Reasonble suspicion
-Nothing (possibly civil)
How can a policeman "search" someone during a Terry stop and frisk?
Plain touch.
Give an example.
What is Standing?
in order for you to object to police action, you have to have the right to object. YOUR rights have to be the ones violated.
Give an example of NOT having standing.
Can police conduct a search incident traffic citation?
No. The search must be incident lawful, custodial arrest.
What is a protective sweep?
Police officer may, incident to lawful arrest, look in closets and other spaces immediately adjoining the area where the arrest takes place. This is for police safety.
Summers Rule
Allows detention of occupants of the residence at the time of the execution of a search warrant, as well as person discovered
“immediately outside a residence at the moment officers arrive”
How long can police hold someone during a Terry stop?
Just long enough to dispel the suspicion given to the officer that crime was afoot. Any longer is a 4th violation because there is no PC.
Exceptions to Fruit of the Poisonous Tree
Dissipation (Attenuation)
Independent Source
Inevitable Discovery
(Good Faith Exception-objective standard)
Do police need probable cause to stop a car?
Not necessarily. For a Terry stop they just need reasonable articulable suspicion that crime is afoot. Such as someone (anonymously) calling in saying a car is driving recklessly and providing a description of your car to police. Police pull you over not on PC but on RAS. -CITE U.S. v. Sharpe.
How to determine is consent is valid?
Must be voluntary.
Look at the Totality of the Circumstances.
When is someone seized?
Restrained physically by police
Submit to show of authority
When a reasonable person would not feel free to leave
What if during a Terry stop and frisk the cop feels a small lump in pocket then touches it more?
Can an officer ask you to empty your pockets and raise your shirt?
If know it’s not a weapon, to search further would be a 4th Amen. Violation
-Yes.
Removing the taint Dissipation to the Fruit of the Poisonous Tree
Existence or absence of intervening causes
Flagrancy of initial misconduct
The pressure or absence of an act of free will by Def. resulting in seizure of fruit