234 Study Guide Exceptions to Warrant Requirement SITLA Requirements Lawful arrest based on antecedent probable cause warrant do not need a warrant Lawful arrest in a persons house where they live or reside you need an arrest warrant search warrant to get in the house then antecedent probable cause Automatic Search o Differs from frisk o Must be contemporaneous with arrest Search of person pockets in wingspan search of body Chimel v California 1969 o Definition of wingspan Scope of wingspan search Wingspan Doctrine Allows them to search belongings within that immediate vicinity not people Person and items Does not include other people need probable cause or antecedent probable cause to search the other person Can frisk o A whole room can possibly be searched under Chimel if it s small Now includes search of target s cellphone for numbers and text messages US enough v Finley 2007 Search of Containers Incident to Arrest Lawful part of SITLA Pocketbooks suitcases etc Must be done contemporaneously around the same time as arrest US v Chadwick 1977 Cannot wait 90 minutes only within minutes what is reasonable Has to have probable cause in your head before you search Don t need Miranda for a search only for the time in between arrest and questioning Search of Auto Incident to Arrest Arrest during traffic stop justifies search of passenger compartment of car NOT TRUNK NY v Belton 1981 OLD RULE as amended by US v Gant 2009 1 can arrestee access passenger compartment or 2 is there reason to believe car might contain evidence related to crime of arrest Gant if you make an arrest and he is sitting near the car free search of the passenger compartment if in car unable to do so Habeus Corpus petition to continue the case even after the normal things are done shows new evidence at new hearing If trunk is open you are able to search it If you find something in the car and have reason to believe there is more in the trunk you are able to search it Lecture 4 17 Last class hand in last homework assignment May 8th will have time for review for final exam May 1 hand in court reports Automatic curve to wherever the highest cumulative curve is Court Report don t go to traffic 1 page what you saw where you went in another paragraph how you felt Not worried about the facts of the case just what you saw Complicated Fact pattern Hard everyone s grades will be lower about 2 pages Asks you if the evidence the police took from the two people can get admitted Focus on answering the questions is the evidence admissible don t waste time repeating the facts Explain why or why not the evidence is admissible At the very beginning of the facts he left something out either assume that he would ve said that or assume not No right or wrong answer to this problem more interested in your rationale or reasoning Exceptions to Warrant Requirement Plain View Doctrine Arizona v Hicks 1987 Cops were in a house for drugs or guns think there is stolen stereo equipment in the house reads the serial numbers and best buy confirmed it was stolen Cop was able to look at the stereo but he wasn t allowed to move it has to be obvious to you Lawful presence in 4th amendment protected area and have come upon evidence that you can see in plain site Thus differs from abandoned property that would be plain site but not a part of the plain view doctrine No unreasonable intrusion of person s Reasonable expectation of privacy Triggs 1973 bathroom stalls with no door Cop can t automatically go into a person s car but he sees something illegal through the car window Incriminating nature of item immediately apparent Avoid specific movement of item to determine its contraband nature Discovery need not be inadvertent Exceptions to Warrant Requirement Consent Not a true exception because outside 4th amendment instead waiver has occurred more outside of the warrant requirement Burden of Proof on government by clear and convincing evidence also in a detention hearing when you re looking at a danger to the community Main thing to prove was that the consent was voluntary Must be voluntary test is Totality of the Circumstances Factors to consider force threat of force submission to fraud Grandma Bumpers deception o Fraud a police officer telling the person you have a warrant when in o Deception and Fraud not good except for one exception reality you don t have one Undercover cop Factors to consider con t clarity of consent writing very useful Schneckloth v Bustamonte o You are not required to tell the person that they have a right to say no Scope of Consent ask the question in the right way don t trick Permission to enter is not permission to search Objective reasonableness of search Revocation Risky to do a search on consent person can withdrawal as soon as you are You can revoke your consent at any moment about to find what you need A moment of revocation can be too late Who may give consent Has to be someone with a connection to the property More than one person except for body search Can ask either one or both ex husband and wife Look for common authority real apparent Landlord Tenant for consent police must go to tenant Hotel Room police must go to those who are staying in the hotel room not the front desk Host Guest Can only consent to the search of the house can not give consent for someone else s belongings If you gave a guest exclusive rights to stay in the basement the homeowner is unable to give consent for that area instead the guest has to give consent Proprietary Interest giving exclusive rights to stay in certain area Joint Occupancy more than one person living in a place with common authority over the home More than one person with the same authority husband wife Anyone you approach for consent can give consent don t have to go to both One says yes one says no o Randolph 2006 Joint occupants like husband and wife occupy location if you go to the house and only one is at the house that is the person who can give consent If both have common authority wife and husband are present one says no one says yes the NO takes reigns Common Authority More than one person with joint occupancy with ability to go anywhere in the house Actual Authority if you approach someone and the person is the owner of the house and the mom and tells you that then they are the actual authority Apparent Authority If the person lied saying they have the actual authority and the police reasonably believe they were telling the truth Parent and Child Employer Employee If