2nd Exam Uptp 711

In a Bivens action, the plaintiff must allege two elements: (1) A violation of a Constitutional right, and, (2) by a person acting under color of federal law.

A knife blade that is 2 1/2 inches long or longer is in violation of the statute.

Tom’s statement was the truth, as he knew the facts. Tom did not lie – he honestly thought Bob was stealing office government computers.

The report, the description, and the fact the vehicle and occupants generally matching the description is RS criminal activity is afoot. Because the crime under suspicion is one in which a weapon is often used, there is also RS the occupants are presently armed and dangerous. This permits a Terry frisk of the occupants and under the seat (as well as the passenger compartment and unlocked containers therein) for weapons.

The officer was in a public place (where he had the right to be) and the open curtain exposed the inside of the house to the public. The homeowner had no REP in what he exposed to the street outside.
Accordingly, what the officer saw in the window was lawfully obtained and can establish information that may be used in the warrant.

“Administrative inspections,” though warrantless, are permissible under the 4th Amendment. A limited warrantless search of people (and their belongings) wishing to enter sensitive facilities is permitted if the search is part of a general practice (i.e., a regulation authorizing the inspection exists) and not for the purpose of securing evidence for criminal investigations. Both of those requirements are met in this case.

Sue’s statements provided probable cause to arrest. Officer Smith did nothing wrong in this case.

firearms trace requires: manufacturer, model, serial number, caliber/gauge.

The law can place an affirmative duty on an individual to perform certain acts, such as the payment of taxes or providing care to a dependent child; failure to comply with the statute is a crime.

This answer correctly states the applicable principle.

Based on the signal provided by the undercover officer, the agents had probable cause to make the arrest. When Martin turned and ran into the residence, the officers were in "hot pursuit." They had probable cause to arrest for a felony, and a general and continuous knowledge (within reason) of the suspect's whereabouts.

Bubba made a false material statement, because he knew the statement was not true and that his statement caused the government to investigate the falsehood.

The root of the question says that the officers were on Thompson’s curtilage. The officers did not have a warrant to be there and there is no 4th Amendment exception. Accordingly, the observation was unlawful and the information they obtained cannot be lawfully used to obtain a warrant

The agents in this case failed to comply with Title 18 U.S.C. § 3109. Specifically, the agents failed to announce their authority and purpose. Merely stating "Federal agents" is insufficient. The agents must also state their purpose (e.g., "Federal agents with a search warrant"). Additionally, the agents in this case impermissibly used force to enter prior to being refused admittance. The term "refused admittance" means that an agent must wait a reasonable length of time before forcing entry, unless exigent circumstances exist.

By denying the suitcase was his, Marsh abandoned any REP he had in the suitcase and therefore, there was no 4th Amendment intrusion.

This is the definition of a tort action

There is no offense – Bill had no knowledge that the vehicle was stolen.

The government does not have to prove John knew it was government property, just that it was stolen property that belonged to the federal government.

Submission by the individual to the authority of the law enforcement officer does not constitute consent. Consent is not voluntarily given in response to an officer's statement that the officer has come to search with a warrant when, in fact, there is none, or they will get a warrant if consent is withheld. However, it is permissible for officers truthfully to advise a person that they will apply for a warrant if consent is refused.

Tom took federal government property with the intent to permanently deprive the government of the property.

The information is stale because almost eleven months has passed since the drugs were seen in Clark’s apartment and therefore there is no PC there are drugs there NOW.

Under federal law, warrantless misdemeanor arrests may be made in a public place if the crime was committed in the presence of the arresting officer. If the crime was not committed in the presence of the arresting officer, an arrest warrant must be obtained.

When a fellow officer is violating someone’s civil rights, an officer has a duty to try and intervene.

The agents were granted consent to enter the house. They were lawfully present in the living room when an agent saw the cigarette on the floor. The requirements of the plain view doctrine were met: lawful presence, immediately apparent the item was evidence of a crime or contraband, and a lawful right to access the evidence.

This offense is conversion, denying the government of the use of the property or misuse of government property. While the weapon is “in pawn” he is denying the government the use of the property, as well as misusing the property.

The officers only had reasonable suspicion criminal activity was afoot which would allow them to make a Terry stop and direct Wooster out of his car. The officers did not have reasonable suspicion that Wooster was presently armed and dangerous making the Terry frisk illegal. Remember: just because you have a Terry Stop doesn’t mean you automatically get a Terry Frisk! In order to lawfully do a Terry Frisk on a detained person you have to articulate facts to establish a reasonable suspicion that the person is presently armed in dangerous.

The search incident to arrest permits looking into the entry way closet because it was in an area immediately adjacent to the place of arrest and could conceal a person. The shotgun was lawfully seized in plain view. (Lawful presence, immediately apparent it was evidence of a crime, and lawful right to access.) The scope of the search incident to arrest was exceeded upstairs because there was no reasonable suspicion anyone was upstairs. Since the scope of the sweep was exceeded, the agent was not lawfully present in the bedroom making the plain view doctrine inapplicable.

A felony is defined as a criminal offense for which the maximum penalty allowed is more than one year. The actual sentence is irrelevant in determining whether the offense is a felony or a misdemeanor. The determining factor is the maximum punishment allowed by the statute.

Clyde knew the computers were stolen. He runs the risk the computers are federal government property. The correct offense is receiving stolen government property

The information known to the officers show both that Johnson was reliable and had a basis of knowledge in what he told the officers. Furthermore, because he is a co-criminal, the information he provided is presumed reliable. Under a totality of the circumstances this is enough to establish probable cause.

A federal employee acting in the scope of his employment is protected under the Federal Tort Claims Act. Therefore, if an employee injures someone while acting in the scope of their employment (meaning acting on behalf of the United States), the United States is the proper defendant under the Federal Tort Claims Act. The Federal Tort Claims Act also requires that the case will be tried in Federal District Court without a jury. The judge will decide if the United States is liable, and if so, for what amount.
Additionally, there is a two year statute of limitations.

There are no statutory prohibitions identified in these facts what would prohibit John from possessing a firearm. It is the illegal consumption of controlled substances or addiction to controlled substance that is prohibited by statute.

A two misdemeanor DUI conviction under state law is a misdemeanor under federal law. This cannot be a firearms violation under the Gun Control Act.

There were two problems associated with the discovery of the marijuana in the scenario. First, an extended protective sweep requires reasonable suspicion to believe that an individual is in the home that could pose a danger to the agents. No facts exist in this question to justify the extended protective sweep in this case. Second, during a protective sweep, an agent may only look in those locations where a person could be hidden. In this case, looking into the toilet tank exceeded the lawful scope of a protective sweep.

All machine guns regardless of barrel length must be registered and a tax paid.

The odor of raw marijuana emanating from the vehicle gave the officer probable cause to search the vehicle without a warrant pursuant to the Carroll doctrine. When performing a Carroll search, an officer may look anywhere within the vehicle where what he is seeking could be hidden, which in this case includes the trunk.

Since Smith was negligent, and not acting within the scope of his employment, the neighbor can file suit against Smith personally in state court.

Though the agents were lawfully present when they saw the cocaine, and immediately recognized it as contraband, they had to have a lawful right to access the drugs to lawfully seize it. The information they obtained from the surveillance, however, could have been lawfully used to obtain a search warrant.

A frisk of Jones for weapons is permissible because there is RS he is presently armed and dangerous based upon his belligerence, movements, non-compliance, and the way he kept reaching into his pockets and turning away. The vehicle can also be frisked but the trunk cannot. Also, Jones had only RS and there are no facts that give him PC to go into the trunk.

Three elements must be present before the “plain touch” doctrine will permit evidence to be seized during a Terry frisk: First, the frisk itself must be lawful; second, the incriminating nature of the item must be immediately apparent to the officer; and third, the discovery is limited to the initial touching, without further manipulation. All three elements are present in this scenario.

The cocaine and rolling papers are admissible because they were lawfully found during a valid search incident to arrest of the passenger compartment of the vehicle. Based on the recent warrant, the nature of the offenses, and activities observed on the day of arrest, the officers had reasonable to believe that evidence of the crime of arrest (drug sale) was in the vehicle. The bricks of marijuana are also admissible, not because they were found during a valid search incident to arrest of the vehicle, but under the mobile conveyance exception. The discoveries in the passenger compartment established probable cause to search the trunk of the vehicle.

False material statements are offenses under the statute. Lying to police, to include making an exculpatory “No” statement about something the police need to know is a material false statement. If Bob did not want to commit the offense, all he had to do was to remain silent.

This case authorizes lawsuits against federal agents who intentionally violate an individual’s 4th, 5th or 8th amendment rights.

Unless the government can prove the elements of the offense (i.e., that the defendant possessed 5 or more false identification documents knowing that the false documents were produced without lawful authority), no offense has been committed.

Occasionally, law enforcement officers are confronted with a situation in which they do not have time to obtain a warrant in the traditional manner due to the impending destruction or removal of evidence.
Rule 41(c)(2) of the Federal Rules of Criminal Procedure provides for a search warrant based on oral testimony, such as communicated by telephone or facsimile machine. This procedure may drastically reduce the time it takes to obtain a search warrant. Thus, if law enforcement officers have time to attempt to secure a telephonic search warrant before the removal or destruction becomes imminent, the officers should attempt to do so.
Failure to attempt to secure a telephonic search warrant, if the opportunity was available, may be considered in an unfavorable manner by a reviewing court.

A search warrant authorizing a search of a certain premises includes any vehicles owned or controlled by the owner of the premises searched and located within its curtilage if the objects of the search might be located in those vehicles. In essence, the vehicle is treated as if it were part of the premises covered by the warrant. It should be remembered, however, that if the owner of the premises has a vehicle that is parked off the curtilage, it cannot be searched pursuant to the premises search warrant.

This statute authorizes civil lawsuits against state and local officials who violate federally protected rights.

The search incident to arrest of Howard’s person was lawful and performed contemporaneous with the arrest. The officers could therefore search his person, and containers on his person, for weapons, means of escape, and any evidence of any crime. The search incident to arrest of the passenger compartment was not lawful. To search the passenger compartment of a vehicle when arresting an occupant or recent occupant, officers must be able to articulate that Howard still had access to the passenger compartment at the time of the search, and that was not the case as Howard was secured in the patrol vehicle. Officers could also perform a search incident to arrest of the passenger compartment if they had reason to believe that evidence of the crime of arrest was present. They had no such information. Had the search incident to arrest of the passenger compartment been lawful, the evidence found in the passenger compartment would have established probable cause there was evidence of crime in the trunk, and officers could have used the mobile conveyance exception to search there. Since the evidence found in the passenger compartment was unlawfully discovered, however, it cannot be used to establish probable cause for the mobile conveyance exception.

The mobile conveyance exception to the warrant requirement does not apply in this case because probable cause is not present. The mobile conveyance exception requires both probable cause and ready mobility before a warrantless search can be conducted.

As the owner of the trailer, Jones freely gave consent to the search of the trailer, including the bedroom. The tin box was not identified in any way as belonging to Morgan, nor did Morgan attempt to limit Jones’ consent to her own personal property. It was reasonable, then, for the officers to think that the tin box was within the consent that Jones had given. It was also reasonable for the officers to think that Jones had authority not only over the premises, but also over all of their contents not obviously belonging to someone else.