1 Book Cover Here Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 3 Arrests Criminal Justice Procedure 8 th Edition

2 Introduction The law of arrests and seizures of persons are governed by the 4 th Amendment to the U.S. Constitution. Arrests include both those made with warrants and those made without warrants. – Probable cause must still be established. An arrest warrant must be supported by oath or affidavit, which details the probable cause upon which it was issued, and must particularly describe the person to be arrested. Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 3

3 Arrests An arrest is defined as the taking of a person into custody against his or her will for the purpose of criminal prosecution or interrogation. – A seizure of a person only occurs if the person actually submits to the show of authority by the police and his or her movement is restrained. An arrest has 4 elements: – Arrest authority – Intention to arrest – Seizure and detention – Understanding by the person arrested. Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 3

4 Michigan v. Chesternut This case provides guidelines for determining when a person has been seized within the 4 th Amendment. Absent seizure, the police do not have to abide by constitutional guarantees. Although the Court did not make a definitive rule for determining when a seizure has occurred, it set forth the following guideline: – “whether a reasonable man, viewing the particular police conduct as a whole and within the setting of all the surrounding circumstances, would have concluded that the police had in some way restrained his liberty so that he was not free to leave.” Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 3

5 California v. Hodari D. Four elements must be present for a seizure to take place: intention to seize, authority to seize, seizure and detention, and the understanding of the individual that he or she is being seized. This case clarifies one of these elements—seizure and detention. The issue here was whether, at the time Hodari threw away the crack cocaine, he had been seized. – Had he been seized before throwing away the crack cocaine, the evidence would have been excluded because at that time there was no probable cause for his seizure. – On the other hand, if he had not been seized, the evidence would be admissible because what Hodari did would constitute abandonment. The Court held that, at the time Hodari dropped the drugs, he had not been “seized” within the meaning of the Fourth Amendment. This is because for “seizure” to be present under the Fourth Amendment, there must be “either the application of physical force, however slight, or, where that is absent, submission to an officer’s ‘show of authority’ to restrain the subject’s liberty.” Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 3

6 Types of Seizures Actual- Actual seizure is accomplished by taking the person into custody with the use of hands or firearms (denoting use of force without touching the individual) or by merely touching the individual without the use of force. Constructive- Constructive seizure is accomplished without any physical touching, grabbing, holding, or the use of force. – This occurs when the individual peacefully submits to the officer’s will and control. Copyright © 2013, Elsevier Inc. All Rights Reserved

7 Payton v. New York In this case, the Court held that unless the officers are in hot pursuit of a fleeing felon, officers may not enter into a home to make an arrest, even for a felony offense, unless they have first obtained an arrest warrant. The 4 th Amendment protects the individual’s privacy most clearly in the home. Copyright © 2013, Elsevier Inc. All Rights Reserved

8 Arrests Without a Warrant Authority to arrest without a warrant varies depending upon whether the offense is a felony or a misdemeanor. – A felony offense is one for which the penalty could be at least one year in prison. – A misdemeanor offense is anything less than that. – Officers are generally authorized to arrest for felony offenses on the basis of probable cause. – In misdemeanor situations, however, probable cause is not enough to make an arrest. If a felony offense is committed or attempted in an officer’s presence, the officer may arrest without a warrant. Officers may also arrest a suspect without a warrant on the basis of probable cause. Copyright © 2013, Elsevier Inc. All Rights Reserved

9 Draper v. United States In this case the officer’s personal observation combined with the detailed information from the informant created probable cause that the suspect was transporting narcotics at the time he was arrested. Thus, the arrest was lawful without an arrest warrant. The Court determined that the information provided by the informant was sufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotics laws and to justify his arrest without a warrant. Copyright © 2013, Elsevier Inc. All Rights Reserved

10 Stops Different From Arrests While arrests of persons can only be made with probable cause, officers are able to stop citizens with less than probable cause under certain conditions. Differences between stops and arrests are: – the degree of certainty required to make the stop – the duration of the stop – the scope of the search that follows the stop Stops can be made on the basis of reasonable suspicion instead of probable cause. Stops are for the limited purpose of investigating a possible criminal event. Copyright © 2013, Elsevier Inc. All Rights Reserved

11 Terry v. Ohio The Terry case made clear that the stop and frisk practice is valid. – Prior to Terry, police practice of stopping and frisking was questionable because the level of certainty employed by the police was less than probable cause which is necessary in arrest and search cases. The Court held that stop and frisk is constitutionally permissible despite the lack of probable cause for either full arrest or full search, and despite the fact that a brief detention not amounting to full arrest is a “seizure,” requiring some degree of protection under the Fourth Amendment. Thus, for investigatory purposes, and based on reasonable suspicion, police can briefly detain citizens without violating their 4 th Amendment rights. Copyright © 2013, Elsevier Inc. All Rights Reserved

12 Tennessee v. Garner In Garner, the old common-law rule of shooting the fleeing felon is expressly overruled in this case. Police officers cannot shoot a suspect to make an arrest. – The use of deadly force to stop a felon would only be considered reasonable in cases of necessity to protect public safety. Although police officers are authorized to use force to arrest a suspect, they can only use the amount of force necessary to complete the arrest; and, that consideration is based on the perceived dangerousness of the suspect. – If a suspect is unarmed, and not committing a violent crime, officers are not authorized to use deadly force to prevent the suspect from fleeing. Copyright © 2013, Elsevier Inc. All Rights Reserved

13 Conclusion The basic foundation of this chapter deals with the 4 th Amendment and the details of arrest. – Arrests may be made without warrants for felonies committed in the officer’s presence in public places. – Arrests may also be made without warrants on the basis of probable cause. The Court has determined that the expectation of privacy in a home is of sufficient importance that obtaining a warrant to enter into the home is necessary to fundamental fairness. Officers may use force to affect an arrest, but only such force as is necessary to make the arrest. Copyright © 2013, Elsevier Inc. All Rights Reserved

14 Copyright © 2013, Elsevier Inc. All Rights Reserved

15 Copyright © 2013, Elsevier Inc. All Rights Reserved