Chapter 3 FOURTH AMENDMENT Detain Arrest Use of Force

Language of Fourth Amendment “ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Overview of 4th Amendment Fourth Amendment only implicated if police “seize” the citizen. Two types of seizures: Investigatory stop – permitted on reasonable suspicion Arrest – requires probable cause

Fourth Amendment only violated if seizure is unreasonable. Seizure is unreasonable if: a) police lack adequate grounds for making the seizure; b) if police fail to procure a warrant before making a nonconsenual entry into private residence to arrest someone; or c) if police use excessive force to effect seizure

Unconstitutional seizure can: Ruin innocent person’s reputation Destroy admissibility of evidence (exclusionary rule) Lead to civil suit and sometimes, criminal prosecution

Three legally significant police/citizen encounters Voluntary encounter Investigatory stops Arrests

“Free Zone” Investigation Voluntary police/citizen investigative encounters are not regulated by Fourth Amendment Suspect has not been seized No legally required level of suspicion necessary Evidence from voluntary cooperation is always admissible However, voluntary encounter can become a Terry stop

“Seizure” Defined Under Fourth Amendment, suspect is “seized” if his liberty is restrained and brought under officer’s control through either: 1) submission to show of legal authority, or 2) physical restraint Test is objective “totality of circumstances” from perspective of reasonable person in suspect’s position. California v Hodari – Crack tossed away while police were chasing youth was not fruit of illegal seizure because youth was not seized until he was captured

Fourth Amendment Grounds for Lawful Seizure Correlation exists between degree of suspicion warranted by what officer knows and type of action 4th Amendment allows officer to take. 1) If nothing more than a “hunch,” investigation must be voluntary. 2) If there are articulable facts that justify reasonable suspicion that a person has committed a crime, is committing, or is about to commit a crime, officer has authority for temporary stop

Cont’d. 3) If officer knows of facts sufficient to warrant a reasonable person to believe (not just suspect) that person is guilty of crime, officer may arrest based on probable cause.

Similarities between reasonable suspicion and probable cause Both involve assessment of suspect’s probable guilt. Both may be drawn from same sources of evidence – includes personal observations, physical evidence at scene, info supplied by other law enforcement agencies/persons/records Judge uses same evaluation process for both. Two steps: 1) determines what officer knew when he acted, then 2) judge weighs these facts

Difference between reasonable suspicion and probable cause Probable cause requires a higher probability of guilt. The higher probability must be based on more evidence or more reliable evidence

Investigatory Stops Terry v Ohio – Supreme Court ruled that officer who observed three men engaged in what appeared to be the casing of a store had reasonable suspicion, justifying the detaining of the men for brief questioning and also frisking them for weapons.

Terry Stops There are three constitutional requirements for a lawful Terry stop: Officer must be able to point to objective facts and circumstances that would justify a reasonable officer to link the detainee’s conduct with possible criminal activity. Officer must proceed with investigation expeditiously. Officer must stay within narrow investigative boundaries allowed for Terry stops.

Reasonable Suspicion For reasonable suspicion standard, officer must possess objective grounds for suspecting person detained has committed, is committing, or is about to commit a crime. Reasonable suspicion requires more than a hunch, but less than probable cause.

None of the following factors is sufficient by itself to provide reasonable suspicion. However, these factors may be taken into consideration as part of the totality of circumstances in deciding whether suspect is engaged in criminal activity -Person “looks suspicious” but officer can’t point to any facts that justify this conclusion - Person is spotted in area that has high incidence of crime -Person is known to have criminal record

Cont’d. Person is in company of others who have criminal records or who are suspected of criminal activity Person is black, Hispanic, or some other race or ethnicity unless the suspect’s race or ethnicity matches description of offender or fits facts relevant to known offense. Person appears nervous or fails to make eye contact with the officer.

Whether facts known to officer provide an objective basis for reasonable suspicion is determined from vantage of trained police officer. Police are entitled to take criminal profiles into consideration in evaluating what they observe for reasonable suspicion purposes only if profiles serve to distinguish the suspect’s behavior from behavior one would ordinarily expect of a presumably innocent person in the vicinity.

Police may not act on information from members of public without independent corroboration unless they have a rational basis for believing the information is reliable. Information from known informant or citizen who identifies himself and reports activity he has witnessed in considered reliable and may be acted upon without corroboration. Information from anonymous tipster must be corroborated before police may act on it.

Scope and Duration of Investigative Stops When police overstep lawful boundaries of investigatory stop, the stop automatically escalates into an arrest, violating suspect’s 4th Amendment rights There are only two authorized activities during an investigative stop Take protective measures to secure their safety Investigate circumstances that prompted the stop.

What can police do under Terry for officer’s protection? Order driver and passengers out of car. If reasonable suspicion the suspect may be armed or dangerous, conduct protective weapons frisk, or protective weapons search of car

a) weapons frisk limited to patting outer clothing. b) weapons search of vehicle limited to looking into areas of passenger compartment where weapon may be stored or hidden. c) may seize nondangerous contraband under “plain feel” doctrine

Under Terry police have what authority? Ask for identification Question suspect Communicate with others to verify suspect’s explanation Run a check of police records Fingerprint suspect at the stop Bring in drug detection dog to for suspect’s luggage, vehicle or other property, if reasonable suspicion exists suspect is carrying drugs United States v Place (see part II)

7) Transport suspect short distance to fresh crime scene for showup identification 8) Request consent for full-scale search, Breathalyer test, or any other procedure that is designed to further investigation.

Police should NOT do the following unless they have probable cause: Take suspect against his will to police station (See Hays v Florida) Search suspect for nondangerous contraband without his consent

Police should avoid the following during a Terry stop: Issue Miranda warning before they have developed grounds for an arrest Perform a weapons frisk without reasonable suspicion that detainee is armed or dangerous Transport detainee to second location unless necessary for officer’s safety or further the investigation. Display weapons, use handcuffs, place detainee in patrol car or perform other acts associated with arrest unless reasonably necessary for officer safety.

Traffic and Vehicle Stops Stopping a motorist is always a seizure Probable cause is necessary to issue traffic citation or make a traffic arrest. Reasonable suspicion is necessary to conduct an investigatory traffic stop. An exception exists for checkpoints

Vehicle Stops - Checkpoints Always a seizure Checkpoints must: 1) Further a special need beyond normal need to control crime; 2) Be authorized by supervisory-level police official; 3) Be operated under systematic procedures that eliminate discretion in selecting vehicles; 4) Be conducted so as to minimize inconvenience to motorists

Vehicle Stops – Checkpoints, cont’d. Check driver’s license, registration Sobriety checks Intercept escaped convicts and dangerous criminal traveling particular route Intercept illegal aliens Use “informational roadblocks” to seek information about recent crime-(Illinois v Lidster) BUT can’t use checkpoints to bring in narcotics dogs

Pretextual Traffic Stops Whren v United States: As long as police have probable cause to believe traffic violation has occurred, their underlying motivation in conducting the traffic stop is immaterial. To have grounds, police must observe traffic violation or have probable cause or reasonable suspicion to believe violation has occurred.

Illinois v Caballes, 2005 U.S. LEXIS 769 One trooper walked a narcotics dog around car that was stopped for speeding while other officer wrote out warning ticket. Court held that 4th Amendment does not require reasonable suspicion to justify using drug detection dogs during a legitimate traffic stop.

Consent Searches at Traffic Stops Ohio v Robbinette: Issue was whether police, after returning driver’s license during traffic stop, must in addition explicitly advise motorist that he is free to go in order for post-traffic stop interactions to be considered voluntary. Court refused to impose a per se requirement. It is voluntary if under the circumstances, reasonable motorist would feel free to drive away. See ex. On p. 123-124.

Fourth Amendment requirements for Constitutional Arrest 1) Two types of arrest: Formal – need a) communication of intent to arrest and b) seizure DeFacto – arises by operation of law when police exceed boundaries of Terry stop. 2) Requires probable cause 3) Arrest warrant is mandatory only when police make nonconsensual entry into private residence to arrest person inside.

Fourth Amendment requires probable cause for arrest Devenpeck v Alford, 125 S Ct 588 (2004) (not in text). Probable cause that supports an arrest does not have to derive from the reasons stated as grounds for it. An arrest is valid, even though police lack probable cause to arrest person on stated grounds, if, based on facts known to them, they have probable cause to arrest person for any offense, even one that is completely unrelated.

Two advantages of arrest warrant over arrest without warrant Ensures evidence seized during arrest is admissible at trial. Immunizes police officer from civil suit

Probable Cause An officer has probable cause to make arrest whenever the totality of facts and circumstances known to officer create a fair probability that a particular person is guilty of a crime Fourth Amendment requires probable cause for 4 different purposes: Warrantless arrest Issuance of arrest warrant Issuance of search warrant Warrantless search and seizure

Fourth Amendment Requirements for Valid Arrest Warrant Magistrate must make independent determination that probable cause exists Magistrate’s determination must be supported by affidavit Warrant must contain particularized description of person to be arrested. United States v King- contains extraordinarily clear discussion of probable cause requirement and how courts go about determining whether an officer’s evidence is sufficient to establish probable cause.

Affidavit Complaint and warrant in Michigan Information and belief Oath or affirmation Detached neutral magistrate Naming or describing a particular person Officer cannot draw conclusion

Warrant Execution Anywhere in public Announce authority and purpose Search warrant for third party residence unless Consent Exigent circumstances Hot pursuit

Arrests in Private Residences If person to be arrested resides in dwelling, only need arrest warrant If dwelling belongs to someone else, need search warrant and arrest warrant Houses, apartments, hotel rooms are considered private residences for 4th Amendment purposes.

Knock and Announce Police must knock and announce before attempting forcible entry Warrant and/or knock and announce is excused if a) person of sufficient age who resides on premises grants permission to enter, b) hot pursuit or c) exigent circumstances Endanger lives Prevent suspect from escaping Destruction of evidence

Use of Force 1) As little as necessary Safety Overcome resistance Prevent escape 2) Split second decision by police in rapidly evolving situations 3) Have force continuum

Use of Force, cont’d Fourth Amendment regulates use of force during arrest or other seizure and imposes standard of objective reasonableness Eighth Amendment is operative after a conviction and protects prisoners from malicious and sadistic application of force Fourteenth Amendment due process regulates use of force during period after arrest and before conviction

Deadly Force Tennessee v Garner: “ Thus if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if where feasible, some warning has been given . . .”

State Arrest Laws Warrantless arrest authority – 764.15 Domestic violence arrest authority- 764.15a Injunctive arrest authority – 764.15b Citizens arrest – 764.16 Time of arrest – 764.17 Warrant not in possession – 764.18 Forcible entry into building – 764.21

Jurisdiction Outside county - 764.2 People v Hamilton, Mich Sup Ct. Working with police in another jurisdiction – 764.2a Fresh pursuit 780.101