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TX Search , Seizure

Texas Arrest, Search, and Seizure August 2014

QuestionAnswer
Describe the process of building and applying probable cause(Part: 1-4) Probable cause can be based on a number of factors. A peace officer who witnesses a suspect committing a furtive or secretive act may use this as probable cause.
Describe the process of building and applying probable cause(Part: 2-4) Probable cause may be based on the crime rate in the area or the time at which an observation is made. An Officer may also base probable cause on the appearance of the the suspect.
Describe the process of building and applying probable cause(Part: 3-4) Probable cause may be based on an officer's prior knowledge of a suspect, or on information obtained from an informant.
Describe the process of building and applying probable cause(Part: 4-4) Probable cause may be based on possession of or proximity to contraband or objects related to a crime. Any arrests made subsequent to an assertion of probable cause should only relate to the crimes for which probable cause was obtained.
Discuss Probable Cause (Part:1-6) Probable Cause is the reasonable suspicion that a crime has been committed, is being committed, or will be committed.
Discuss Probable Cause (Part:2-6) The amount of evidence required for probable cause does not need to be sufficient to guarantee a conviction in trial, but it does need to exceed simple suspicion on the part of the officer.
Discuss Probable Cause (Part: 3-6) Probable cause can also be used to justify police officers entering an area in which there are specific objects believed to have been used in a crime.
Discuss Probable Cause (Part: 4-6) The fourth amendment of the United States Constitution declares that officers must demonstrate probable cause before receiving an arrest warrant or search warrant.
Discuss Probable Cause (Part: 5-6) In other context, probable cause may be referred to as sufficient cause, reasonable grounds, or reasonable cause. It is important to note that the courts view probable cause as subject to an objective standard rather than to the opinion of the officer.
Discuss Probable Cause (Part: 6-6) Probable cause only exists when a reasonable person would agree that there is sufficient evidence. However, the definition of what constitutes a "reasonable person" or sufficient evidence is continuously refined by the courts.
Discuss some situations in which frisking would be permissible. (Part: 1-3) Frisking is permissible whenever an officer feels his or her safety may be threatened. A frisk is just a careful patting of the outer clothing of the detained person. A frisk should not include going into the person's pockets or possessions.
Discuss some situations in which frisking would be permissible. (Part: 2-3) An officer should be able to describe the reasons for the frisk. a frisk may extend over the entire body of the suspect. In some situations, the detained person may resist being frisked.
Discuss some situations in which frisking would be permissible. (Part: 3-3) Officers are only allowed to use the minimum force necessary to complete the frisk. If illegal weapons are found during a frisk, officers should seize them and file the appropriate charges. A frisk must respect the rights of the detainee.
Discuss Reasonable suspicion? (Part: 1-2) Peace officers must be careful before confronting a suspect based on mere suspicion. A suspicion is based on a perception (such as a sight, sound, or smell) that suggest possible criminal activity.
Discuss Reasonable suspicion? (Part: 2-2) A suspicious peace officer may investigate further, and may approach people to ask questions. However, these people may not be detained, may not be forced to identify themselves, and refuse to answer questions.
Discuss temporarily detained? (Part: 1-2) If an officer has a reasonable suspicion that a crime has taken place, he or she may temporarily detain a suspect. In order to do so, the officer must have a reason to believe that a crime has been committed.
Discuss temporarily detained? (Part: 2-2) A person being temporarily detained is not required to identify him or herself. Also,if the officer believes that the person may be carrying a weapon, he or she is allowed to frisk the person.
Describe lawful searches? (Part:1-3) A search may be conducted if an officer has a reasonable expectation of discovering the fruits of a crime, the tools of a crime, evidence, or contraband. a search may be justified either by a search warrant or as part of a lawful arrest.
Describe lawful searches? (Part:2-3) A search that is incidental to a lawful arrest should not extend beyond the area within the immediate control of the suspect. The search should be conducted a the same time as the arrest. A search may be conducted of people, vehicles, places, open areas.
Describe lawful searches? (Part:3-3) the search of an area outside of a house or building should begin where the curtilage (outside of home) ends.
Describe the Exclusionary Rule? (Part: 1-2) the exclusionary rule states that evidence obtained through illegal searches or other illegal govt. actions cannot be included in a trial. It is important to note that this rule applies not only to physical pieces of evidence.
Describe the Exclusionary Rule? (Part: 2-2) Exclusionary rule also applies,to confessions or other testimony received subsequent to an illegal search. All of this evidence is referred to as "fruit of the poisonous tree," and must be excluded.
Summarize the Code of Criminal Procedure's discussion of preventing the consequences of theft and the uniform criminal Extradition Act's discussion of warrant-less arrest. (P1-4) Article 18.16 of the CCP states that citizens have the right to prevent the consequences of theft by seizing stolen personal property and bringing it before a magistrates. If possible, they can also present the person who committed the theft.
Summarize the CCP's discussion of preventing the consequences of theft and the uniform criminal Extradition Act's discussion of warrant-less arrest.(P2-4) Another option is to take the person and the property to a peace officer. This must be done immediately and there must be reasonable grounds to believe the property has been stolen.
Summarize the CCP's discussion of preventing the consequences of theft and the uniform criminal Extradition Act's discussion of warrant-less arrest.(P3-4) Article 51.13 of the CCP is also known as the Uniform Criminal Extradition Act. Section 14 of this document states that officers and private citizens may arrest a person without a warrant so long as there is information to believe that accused is guilty.
Summarize the CCP's discussion of preventing the consequences of theft and the uniform criminal Extradition Act's discussion of warrant-less arrest.(P4-4) It is necessary to present the accused to be taken before a judge or magistrate as soon as possible.
Summarize the Code of Criminal Procedures's discussion of complaints? Article 15.04 of the CCP states that an affidavit made before the magistrate or district or count attorney is referred to as a complaint when it charges the commission of an offense.
Summarize the Code of Criminal Procedures's discussion of contents of a complaint? Article 15.05 of the CCP states a complaint must have the following components: name, description of him, reasons, offense, time , place of the commission of the offense, and signature or mark of the affiant.
Summarize the Code of Criminal Procedure's discussion of dismissal of charges? Article 24.13 of the CCP states that if a person is released on bail or has his charges dismissed after being transferred to a county but before being returned to the dept, the county must notify the department.
Heitman V. State (1991) TX courts are free and indeed encouraged, to interpret the State Constitution independently of its federal counterpart. Heitmans briefcase was found in the passenger section of his vehicle, after his arrest. Briefcase inventory pursuant to lawful arrest.
U.S. V. Mendenhall (1980) Evidence was sufficient to support a finding that Mendenhall, 22 yrs old black female with 11th grade education, voluntarily accompanied white male federal agents. despite her statement to a female police officer that "she has a plane to catch."
Florida V. Royer (1983) Conviction of felony poss. marijuana was reversed holding that Royer, was nervous young man paying cash for ticket from Miami to New York under assumed name. Temporarily detain him,Yes.No return of D.L/ticket,was free to leave, not mentioned.
Illinois V. Wardlow (2000) Flight not necessarily indicative of ongoing criminal activity, TERRY recognized that officers can detain individuals to resolve ambiguities in their conduct. Individual must be allowed to go. If no Probable cause found. Wardlow had gun and was charged.
Miranda V. Arizona *** Warning procedures pursuant to custodial police interrogation. Police to advise suspects of their rights under the 5th and 14th amendments before interrogation.
Maryland V. Shatzer (2010) Supreme held that because Shatzer experienced a break in Miranda custody lasting more than two weeks between the 1st and 2nd attempts a interrogation, Police may reopen questioning of a suspect who has asked for counsel.
Florida v. Powell (2010) Warnings reasonably convey to a suspect his rights as required by Miranda. Supreme Court clarified that there is no specific wording that must be followed by police.
Aguilar V. Texas (1964) "Two prong test", reliability and validity of information or informant. Credibility of informant, reliable information. Verifiable facts.
Illinois V. Gates (1983) Informant " totality of circumstances" test. Court adopted a "totality of circumstances" test in its place. Magistrate may now make a practical common sense decision of whether probable cause is established by facts.
Beck V. Ohio (1964) Probable cause not established on subjective good faith. Officers acted on unspecified reports, and information. Police
Brown V. Texas (1979) Arrest for failure to identify. Texas statute to detain Brown and require him to identify himself violated the 4th Amendment because officers lacked any reasonable suspicion to believe Brown was engaged or had engaged in criminal conduct.
Terry v. Ohio (1968) *** Pat down of outer clothing for weapons. this case is commonly referred to as the "stop and frisk principle" or "terry frisk."
Adams V. Williams (1972) Protective search based on reliable informant. Peace officers making a reasonable investigatory stop may conduct a limited protective search for concealed weapons when there is reason to believe that the suspect is armed and dangerous.
Baity V. State (1970) Frisk and arrest for burglary of coin operated machine. This case dealt with "temporary detention".
Armstrong v. State Warrant-less stop and search of Vehicle. Mere presence of a 66 Plymouth" seven days after police officer received information that a car might be driven by a suspect did not give the police cause to stop the vehicle and search.
Pennsylvania V. Mimms (1977) Investigative detention/Officer safety. Police Officer may order persons out of car during a routine motor vehicle stop. Absence of suspicion of criminal activity.
Maryland V. Wilson (1997) Vehicle passengers / Officer safety. Officers making a traffic stop may order passengers out of car, during stop.
Brendlin v. California (2007) Passenger may challenge constitutionality of the stop.
Katz v. U.S. (1967)*** Telephone booth-Expectation of Privacy.
Chimel V. California *** Spatial scope of search incident to arrest. Once a person is arrested, the area within that person's immediate control can be searched.
Maryland V. Buie (1990) Protective Sweep.During in home arrest, officers may conduct a "protective sweep" of the premises so long as the officers possess specific and articulate facts which, taken together, to protect from possible dangers.
New York V. Belton (1981) Vehicle search incident to arrest. Vehicle may be searched, where the suspect sat and examine the contents of any containers found within the compartment, regardless if open or closed.
Thornton V. United States (2004) Vehicle search after arrested has left vehicle.4th Amendment allows the officer to search the vehicle's passenger compartment as a contemporaneous incident of arrest.
Arizona V. Gant (2009) Belton and Thornton effectively overruled.
Franks V. Delaware (1978) Attacking the integrity of the affidavit.
Carroll V. U.S (1925) *** Warrant-less search of a "readily mobile" vehicle.
U.S. V. Edwards Warrant-less seizure of clothing 10 hours after arrest.
Bumper V. North Carolina (1968) *** No consent to search if based on coercion. Where there is coercion there cannot be consent.
Texas V. Brown (1983) Plain View-"immediately apparent"
Mapp V. Ohio (1961) *** Extended Federal Exclusionary rule to all states. This tool is called the Exclusionary rule, and since 1961 it has been disallowing the use of evidence obtained in violation of the 4th Amendment in state as well as federal prosecutions.
Three classifications of Interactions between peace officers and Civilians Consensual Encounters, investigatory stops/ Detentions, Arrests.
Consensual Encounters Police are free to approach and ask questions of persons: they can refuse to identify, cooperate, answer questions and simply walk away.(Florida V. Royer) (1983)
Investigatory Stops/Detentions The temporary seizure of a person for investigation based on an officer's reasonable suspicion of criminal activity. (Terry V. Ohio) (1968)
Arrests Take persons into custody for purposes of charging them with a crime based on an officers establishment of probable cause (U.S. V. Mendehall (1980)
Elements of Arrest Intent, Authority, Actual Seizure, Understanding
Intent Subjective intent of the officer does not control the determination of court, this element is only important when it is conveyed to the person seized."You are under arrest," or "you are not under arrest, you are being detained."
Authority Does officer have the authority to arrest, supported by probable cause, is there a Texas statute that authorizes the arrest to be made without warrant?
Seizure of the person The person must either: obey the officers commands and be restrained in movement or the officer must actually physically restrain the person.
Understanding of the individual being arrested Does the person understand her status in the situation?
When a person is arrested "A person is 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."
Constructive Custody The words confined, imprisoned, in custody , confinement, imprisonment, refer not only to the actual, corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces or the fear of injury.
Restraint is meant the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right. "
Duties of arresting officer and Magistrate Take before a magistrate, without delay, but not later than 48 hours after arrest, give Miranda warning. Right to counsel.
Miranda warnings The person has the right to remain silent, that anything the person says can be used against him in a court of law. Right to an attorney. If he cannot afford one, one will be appointed.
Procedures to safeguard the 5th Amendment Privilege Person in custody, prior to interrogation must be clearly informed: In Texas, right to terminate the interview at any time.
The 14-Day Rule Once persons in custody indicate their right to remain silent, interrogations must cease. If person in custody requests an attorney, the interrogations must cease until an attorney is present or until there is at least a 14 day break in Miranda custody.
"BRIEF" short synopsis of the case: Facts, issues, Holdings, Reasoning.
Offense Within View (CCP 14.01(a-b)) Within view of officer, officer may arrest without a warrant.
Within View of Magistrate (CCP 14.02) Order the officer to arrest an individual, may arrest without warrant when a felony or breach of the peace has been committed in the presence or view of magistrate and verbally orders the arrest of offender.
Authority of Peace Officer (CCP 14.03) Establish probable cause to investigate for possible offense. Arrest if probable cause is ensured. Enforce arrest of violation of protective order and preserve the peace.
Mandatory Arrest Authority (CCP 14.03) Violation of Protective order in the officer's presence.
"Exigency" "Exigency": hot pursuit, emergency and imminent destruction of evidence.
Arrest by Peace officer from other jurisdiction Continue pursuit into Texas.
Must take offender before magistrate (CCP 14.06) No later than 48 hours.
Uniformed Criminal Extradition Act (CCP 51.13,SEC.14) All states have agreed to language, lawfully made on evidence crime is punishable.
Privilege of Legislators (CCP 1.21) Not to be arrested unless for felony, treason or breach of the peace during session. 1 day or each 20 miles to their home of residence. Granted.
Witness Person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.
Requisites of Complaint (CCP 15.05) Must state name of accused, must show offense, it must state the time and place of the offense, and it MUST be signed by the "AFFIANT" in writing his name or mark.
Commitment (CCP 16.20) is an order signed by the magistrate directing a sheriff to receive and place in jail the person so committed. It will be sufficient if it has the name of the STATE of Texas, address to the sherriff, offense, court date,location of trial, bail if set
CAPIAS (CCP 23.01) issued by Judge of the court, or signed by the clerk.
May break door (CCP 15.25) Announce yourself and authority. Felony Warrant, party refuses to allow admittance.
What force May be used (CCP 15.24) All force that is reasonable and usable.
Suspicion The act of of imagining or of doubt, the apprehension of something without proof,or on slight evidence. To imagine one guilty, or culpable on slight evidence without proof.
Mere Suspicion Hunch or feeling of intuition. although intuitively knowing something is undoubtedly a skill that serves law enforcement officers well, mere suspicion is insufficient proof of any fact in a court of law.
Probable Cause "A reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.
Probable Cause Building Blocks Smell, sight, Hearing, touch, officers own knowledge of facts and circumstances applicable to that particular location, person or situation. Cannot use personal bias or hunches.
Is an anonymous tip that a person is carrying a gun, without more, sufficient to justify a police officer's stop and frisk of that person? No, to justify a stop based solely on an anonymous tip, police must take steps to establish the reliability of the tip.
"Temporary Detention" lasting for a time only, existing or continuing for a limited time, transitory. Detention: holding a person in custody, confinement, or compulsory delay."
Elements of Temporary Detention Rational suspicion some activity out of the ordinary is or has taken place. indication to connect the person , to be detained with activity. Suspicious activity is related to specific offense.
FRISK Pat down" of the outer clothing of a person whom you have stopped or a container to which a detained person may have immediate access.
Reason for "FRISK"? To locate a weapon. Only necessary force my be used to Frisk!
Search examination of a man's house or premises, or of his person, with a view to the discovery of contraband or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he was charged.
Critical Issues involving Search Warrants? Must be based on probable cause, magistrate will determine based on four corners. list items to be serched, why is location to be searched.
"CURTILAGE" considered to be that area of open space surrounding a dwelling which is so immediately adjacent to the dwelling that is considered part of the house.
Voluntary Consent No requirement of probable cause for this search. Must be voluntary, may be withdrawn at any point, officer will be required to prove consent was voluntary, may need signed consent form.
Created by: Madhatterd7