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Why is the probable cause test for a search is similar to the probable cause test for an arrest?
requires reasonable belief based on a reliable source, that contraband or evidence of a crime is in the place to be searched. It must go beyond mere suspicion or an educated hunch.
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The major exceptions to the warrant requirement are:
- searches incident to a valid arrest
- automobile searches made under certain conditions
- searches made under emergency conditions or exigent circumstances
- searches made with valid consent.
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An automobile search founded on probable cause may extend to what part of the car?
any part of the vehicle, including closed containers found inside, in which the object of the search can be concealed
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Define Curtilage
the area around the home to which activity of home life extends
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You may, without a warrant, seize items found in plain view at the time of an arrest under what two conditions?
- you have probable cause to believe the items are contraband or otherwise evidence of a crime
- you have lawful access to the items
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If you reasonable suspect that an occupant of the vehicle is dangerous and may be able to gain control of a weapon in the car, what can you do?
you may conduct a brief search of the vehicle, limited to the areas where a weapon might be placed
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To justify a stop, your "reasonable suspicion" must be based on what?
Specific objective facts and the logical conclusions your experience enables you to draw from those facts
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What is Temporary Detention?
Holding a person for a limited time, but who, as yet, is not answerable to a criminal offense
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When may you you may search for weapons and evidence on the person of the suspect and in the immediate area? If you want to search further what must you do?
At the time you make the arrest or immediately after.
Get a warrant
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When is a person arrested?
when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant
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Pursuant to your department's "care-taking" policy of any lawfully impounded vehicle, what may you do?
conduct a routine warrantless inventory search of the passenger area, including the glove compartment
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To prevent the loss or destruction of evidence, and you have probable cause, what can you do?
you may secure an area while a search warrant is sought
includes preventing a resident of a home for which you have probable cause from entering the home unaccompanied by an officer while the search warrant is sought
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What is a "Search Warrant"?
s a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate or commanding him to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order
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Does having a canine that is trained to detect drugs, explosive, or other contraband sniff the exterior of containers in a "public place" amount to a search under the Fourth Ammendment?
No
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While frisking a suspect for weapons, you detect an object that is not a weapon, what do you do?
you may seize it without a warrant if your experience and sense of touch make it "immediately apparent” to you that the object is contraband or evidence of a crime
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You may, without a warrant, seize any contraband or evidence of a crime that:
- is in "plain view"
- you have lawful access to
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When considering consent. You can conduct a search of a person or property even thought you don't have a warrant or even probable cause if:
you have obtained the prior consent of the one whose rights will be affected by it
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When Considering Emergency and Exigent Circumstances. You may make a warrantless search for evidence that:
you have probable cause to believe is in the place or thing to be searched and that you have reason to believe will be destroyed or moved before a warrant can be obtained
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A suspect you have formally charged with an offense is protected by:
y the right to counsel, regardless of whether or not he is in custody or subjected to interrogation in any form
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"U.S. v. Mendenhall"
presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics
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“Aguilar v. Texas”
” held that "although an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances relied on by the person providing the information and some of the underlying circumstances from which the affiant concluded that the informant, whose identity was not disclosed, was creditable or his information reliable."
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“Brown v. Texas”
Held that the application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct
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“Terry v. Ohio”
held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime
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"Chimel v. California”
held that police officers could search only within the immediate area of a suspect who was being arrested
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"Carroll v. U.S.”
upheld the warrantless search of a car, noting that probable cause existed and the mobility of the automobile made it impracticable to get a search warrant
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"Michigan v. Long"
a decision by the United States Supreme Court that extended Terry v. Ohio, 392 U.S. 1 (1968) to allow searches of car compartments during a stop with reasonable suspicion
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"Payton v. New York"
a United States Supreme Court case concerning warrantless entry into a private home in order to make a felony arrest
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Wong Sun v. United States"
United States Supreme Court decision excluding the presentation of verbal evidence and recovered narcotics where they were both fruits an illegal entry
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“Miranda v. Arizona”
a landmark 5-4 decision of the United States Supreme Court which was argued February 28-March 1, 1966 and decided June 13, 1966. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them
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“Katz v. United States”
a United States Supreme Court decision that extended the Fourth Amendment protection from unreasonable search and seizure to protect individuals in a telephone booth from wiretaps by authorities without a warrant
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“Terry v. Ohio”
a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. For their own protection, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a "stop and frisk". This standard was later extended to temporary detentions of persons in vehicles, known as traffic stops
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“Beck v. Ohio”
a United States Supreme Court decision holding that the police arrested the defendant without probable cause, and therefore the clearing house slips found on his person after taking him to the police station were found as part of an unconstitutional search. The lack of specific facts about the defendant led the court to determine that probable cause did not exist. There was only one officer who knew what the defendant looked like and that officer had received some information from an informant that the defendant was involved in games of chance, but there was no evidence as to the reliability of the informant, nor did the informant indicate the time or the place where the defendant would appear
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“Illinois v Gates”
decided that the two-progned test established under Aguilar and Spielli is abandoned in favor of a totality of the circumstances approach. The task of an issuing magistrate is to make a practical decision whether, given all the circumstances, there is a fair probability that the evidence of a crime will be found in a particular place
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“Florida v. Royer”
a U.S. Supreme Court case dealing with issues involving the Fourth Amendment. Specifically, the case establishes a firm line in cases where police conduct search and seizure without a warrant. The court ruled that, while it is legal for authorities to target and approach a person based on their behavior, they cannot detain or search an individual without a warrant
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“Mapp v. Ohio”
a landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures", may not be used in criminal prosecutions in state courts, as well as federal courts
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“Heitman v. State”
stands for the proposition that state courts are free to interpret the state constitutional protection against unreasonable searches and seizures as granting greater protections for the residents of Texas than those granted by the federal constitution
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The three classifications of interactions between peace officers and civilians:
- consensual in nature
- detention based upon reasonable suspicion
- arrest based upon probable cause
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A consensual encounter must be what to pass muster as a consensual encounter?
truly voluntary in nature
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The four elements that have been used by courts to determine whether an arrest has occurred are:
- Intent
- Authority
- Actual seizure
- Understanding of the individual being arrested
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The “Miranda v. Arizona” procedures safeguards what Ammendment?
5th
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Officers must always do what in order to establish the location as suspicious?
articulate the facts and circumstances known about the conduct at a location
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“Steagald v. United States”
states that entry may only be forced to execute an arrest warrant when the warrant is being executed at the residence where the person named in the arrest warrant lives
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Should an initial consensual encounter lead to an arrest or seizure of contraband, you must be able to articulate what?
sufficient facts and circumstances to establish reasonable suspicion and probable cause to support the detention, arrest and search
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“Beck v. Ohio”
United States Supreme Court decision holding that the police arrested the defendant without probable cause, and therefore the clearing house slips found on his person after taking him to the police station were found as part of an unconstitutional search. The lack of specific facts about the defendant led the court to determine that probable cause did not exist. There was only one officer who knew what the defendant looked like and that officer had received some information from an informant that the defendant was involved in games of chance, but there was no evidence as to the reliability of the informant, nor did the informant indicate the time or the place where the defendant would appear
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Can information provided by an informant engaged in criminal activity be used to build probable cause?
Yes
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When considering Probable Cause, what information will be considered in court?
- only that information known to the officer at the moment of the seizure or search
- any evidence found after the arrest or during the search will not be admissible to prove probable cause
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When considering Probable Cause the court will examine the totality of the circumstances surrounding the seizure or detention to:
determine if there were sufficient facts and circumstances present to satisfy the Fourth Amendment.
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When considering "temporary detention", even lawful detention, can a person be required to identify himself?
No
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Persons who have been lawfully detained are under what obligation to answer questions posed by officers?
None
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When considering a frisk, and the necessity of it, the officer must articulate what?
the facts, observations and information known at that particular point in time with regards to that particular person that led the officer to believe that the frisk was necessary to insure the officer's safety and the safety of others
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The plain feel/touch doctrine set forth in “Minnesota v. Dickerson”:
the Supreme Court decided that contraband found during a frisk in which it was immediately apparent (by touch or feel) to the frisking officer that it was contraband may be admissible at trial
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The three areas that fall under the doctrine of a search incident to a lawful arrest are:
- A person under arrest
- the area immediately around the person arrested
- and the passenger compartment of a motor vehicle in which the arrested person was a recent occupant may be searched
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What are the exceptions to the warrant requirement for crime scenes?
There are none
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In order for the search incident to lawful arrest to pass constitutional scrutiny, the following (two) elements are required:
- The arrest must be lawful
- and the search must be contemporaneous with the arrest
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The automobile exception has what two primary elements:
- a 'readily mobile' motor vehicle
- probable cause to believe the vehicle contains contraband or criminal evidence
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Officers may enter a home without a warrant to:
render emergency assistance to an occupant or protect an occupant from serious injury
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When considering a consent search, once a person grants consent, the person:
remains in control of the search and may limit the scope of the consent or revoke it entirely
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Officers may prevent a person from entering the home while they obtain a search warrant if:
they have probable cause to believe that a person has hidden contraband in his home
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The two prerequisites of the Plain view exception are:
The officer must be lawfully present to see what she sees, and it must be immediately apparent (meaning probable cause) to the officer that what she is seeing is contraband or somehow connected with criminal activity
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South Dakota v. Opperman, 428 US 364 (1976) says an inventory is what?
an administrative, caretaking procedure designed to prevent false claims of lost or damaged property being made against a police department and to safeguard the police and others from potential danger
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State v. Daugherty, 931 SW2d 268 (Tex. Crim. App. 1996): In Texas, if an officer executes a warrant issued by a neutral magistrate, and it is later discovered that there was insufficient probable cause in the supporting affidavit:
The fruits of the execution of the warrant will be suppressed -even if the executing officer knew nothing of the deficiencies
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“Payton v. New York”
"an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Thus, when executing the arrest warrant on the suspect in his home, officers must 1) reasonably believe the person resides there and 2) reasonably believe the person is present when the warrant is executed. However, if the suspect is a guest of a third party, and there is no exigency or the homeowner does not consent to the officers' entry, then law enforcement officials must obtain a search warrant for the third party's dwelling
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The two elements that need to be true before executing an arrest warrant:
- Needs to be suspects place of residence
- Reasonable belief that he his home
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Factors courts consider in determining whether exigent circumstances exist include:
- The seriousness of the crime
- whether a delay would pose a threat to public safety
- whether the evidence of a crime will be destroyed if there is a delay in obtaining a warrant
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Is there a requirement that Miranda warnings be issued immediately after a motorist is arrested?
No, Voluntary statements made during traffic stops are admissible evidence
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Arizona v. Gant
- April 21, 2009,
- officer who makes an arrest for a traffic offense can only search the vehicle incident to that arrest if;(1) at the time of the search, the arrestee is unsecured and within arm’s reach of the passenger compartment, or (2) if it is reasonable to believe that evidence related to the crime of arrest is located within the passenger compartment
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Terry v. Ohio case info:
police officer with 39 years experience had patrolled the vicinity of a downtown metropolitan area for shoplifters and pickpockets for 30 years. The officer watched a man (walk past the window of a jewelry store several times and then walk over to several men. It appeared to the officer that the men were planning to rob the store, so he stopped them and asked questions. During the encounter, the officer frisked Terry and found a weapon
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Hiibel v. Sixth Judicial District Court of Nevada
held that a police officer's arrest of a suspect, after the suspect refused to identify himself during a Terry stop in violation of Nevada law, did not violate the Fourth Amendment
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"The four corners of a charging instrument"
in ascertaining the legal significance and consequences of the document, the parties and the court can only examine its language and all matters encompassed 6within it. Extraneous information concerning the document that does not appear in it — within its four corners —cannot be evaluated
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The following are charging instruments in Texas:
An indictment, Information and Complaint
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“Texas v. Cobb”
"We can, and should, define "offense" in terms of the conduct that constitutes the crime that the offender committed on a particular occasion, including criminal acts that are "closely related to" or "inextricably intertwined with" the particular crime set forth in the charging instrument."
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If you are confronted at the door of a residence with two occupants, and one consents to a search and the other refuses to allow a search, what do you have the legal authority to do?
without more to go on, can't search the residence. However, if you are confronted at the door with one of the occupants, who consents to a search of the residence, and the other occupant is sleeping on the couch next to the door and is not involved in any discussion for consent to search, you have a valid consent to search the residence
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“Georgia v. Randolph”
Supreme Court held if the police are at a residence but do not have a warrant to search the home, and if the two occupants are present at the same time and one consents to a search but the other objects, the police may not search the home in the face of that objection
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Under what circumstances can law enforcement officers enter a residence that will not violate the Fourth Amendment
responding to a call at a residence have an objectively reasonable basis for believing an occupant is seriously injured or imminently threatened with such injury
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