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Cheatography

Con crim Pro Cheat Sheet (DRAFT) by

This is a draft cheat sheet. It is a work in progress and is not finished yet.

What is a Search?

1. Right Actor
Government Actor. 14th Amendment
2. Right Target
Verdu­go-­Uqu­idez: Even non-ci­tizen. Person with a meaningful connection with the U.S. Community
3. Is it a search?
Touchs­tone: Reason­abl­eness
ESSAY
4th Amendm­ent
-Protects Persons, Houses, Papers, Effects from unreas­onable searches and seizures (Arbitrary Gov't Intrusion)
-4th Amdt applied to states via the 14th Amdt DP Clause
Issue:
Whether police collection of (evidence) is a search because if a search, need warrant first or presum­ptively unreas­onable.
Search
Presum­ptively unreas­onable in the absence of a warrant
Two tests whether or not a search:
1. Jones: Trespass plus intent to obtain inform­ation
2. Katz (Harlan's concurring opinion): Reasonable expect­ation of privacy subjec­tively held.
Jon­es
1. Trespass
2. Intent to obtain inform­ation
--Alit­o/S­oto­mayor concur­rences
Highlight length of search and how intimate details of one's life are revealed when GPSed for 28 days, hence crossing line of REOP.
--Soto­mayor concur­rence
Phone records turn into a search because of the huge amount of data (life details) that could be revealed. Privacy shouldn't be treated as a discrete commodity.
Katz
1. Subjective Expect­ation of Privacy
2. Reasonable Expect­ation of Privacy
Katz majority, Maryland v. Smith
What one knowingly exposes to the public is not protected by the 4th amendment because no REOP in what one knowing exposes
REOP Test
1. Site ex) home
2. Steps taken to keep inform­ation private. Not knowingly exposing oneself to the public.
3. Degree of intrusion
2.No REOP when one is knowingly exposed to the public
1. White v. Maryland: in that knowingly giving telephone numbers dialed to phone company hence pen register capture of that data (metadata) is not a search because the phone co. is a 3rd party
->assumption of risk
->public
2. Knotts: which found knowing exposure of movements on public road to not constitute a search
----Exception----
3. Karo: found that beeper identi­fying movement of canister inside a home was a search
Curtilage
Kyllo
Thermal Imager is a
Jones
1. Trespass 2. Intent to obtain inform­ation is a search
4. Is there a warrant?
Excl­usi­onary Rule
Bars the use of evidence gathered through an illegal search and seizure

Warrant

1. Probable Cause
1. Reliab­ility
2. Basis of Knowledge (1st Hand knowledge)
2. Particular descri­ption
3. Affidavit
4. Neutra­l/D­etached Magistrate
Why?
Indivi­dua­lized Suspicion v. Arbitary classi­fic­ation of large groups
*Note:
-Dog certified at a dog training faciliitiy is enough to show probable cause
- Police affidavit is automa­tically reliable
- Police state of mind, reputation w/o facts is irrelevant to PC: cannot be Basis of Knowledge
 

Warrant

WARRANT REQUIR­EMENTS
1. Neutral and Detached Magistrate
2. Probable Cause
3. Oath and Affirm­ation
4. Partic­ularity of Descri­ption (what is seized and where)
King Probable Cause at home:
1. Knock and announce
2. Get a warrant
unless had exigent of circum­stances
Search Warrant
1.
Arrest Warran­t­(Pa­yton)
1. Must have reason to believe resident is home
2.No uncons­enual entry unless
Exce­pti­ons:
1. Hot pursuit
2. Imminent destru­ction of evidence
3. Need to prevent a suspect's escape
4. Risk of danger to the police or to others
Excessive force
Reason­abl­eness standard: deadly force only when immediate threat to police or others. Would a reasonable police officer under same or similar circum­sta­nces.
Rich­ards
1. When at a home, must knock and announce rule when executing a search or arrest warrant.
2. However, they may dispense with knock and announce if Police must have reasonable suspicion (belief) that knock and announce at home would be dangerous or futile or inhibit effective invest­iga­tion.
3. Even if no K&A and no rsbl suspicon: no remedy anyway
Ybarra Seizure of persons during warranted searches
1. Probable cause
2. Exigent Circum­stances
Police created exigency
Engage in or threat­ening to engage ina 4th amdt violation
Automobile Search
1. PC
2. SITLA (PC-less)
3. Inventory search
 
Exc­ept­ions
1. SITLA
2. Automobile Exception
3. PC of Evidence of Crime inside Car/ Exigent Circum­stances
4. Inventory Search 5. Plain view Doctrine
Plain View Doctrine
1. Observe from Lawful location (with warran­t/PC)
2. Immedi­ately apparent contraband or incrim­inatory nature (=Probable Cause)
3. Lawful access (sidewalk v. being in the house)­--Scope of the Search
Payton:
Steagold
McAr­thur: Police can "­sei­ze" premises or thing (or maybe even a person) while waiting for a warrant? Yes, if reasonable and PC
 

Terry Stop

Scale of Indivi­dua­lized Suspicion
Consent (0)l--­---­BID­---­-PC­-----l (100)
Consensual Police Encounter (CPE)
Yes-Taking personal items, No- Come with/a­cco­mpany police, Ability to say no
Factors:
1. Blocking door
2. Asking for permis­sion. 3. Would a reasonable person know they could decline search­/se­izure
Brief Invest­igatory Detention (BID)
1. Reasonable Suspicion "­crime is afoot"
2. Reasonable Time it takes to diligently pursue a means of invest­igation that was likely to confirm or dispel their suspcions quickly
3.
Where is a seizure?
No longer in a public concourse
Reasonable Suspicion
1. Objective facts or circum­stances
2. Hunch
3rd Party Informants
1. TOC
2. BOK + Credib­ility
Arrest
What is a seizure?
- Only by physical force or show of authority
- Only if in view of all the circum­sta­nces, a reaonable person would have believed that he was not free to leave
Show of authority
Hodari: Seizure requires that D yield/­submit to show of authority.
Illegal Seizure
If legal seizure
Must be based on reasonable suspicion
Ex) Fleeing from police in high crime area gives police reasonable suspicion
       

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