Criminal Procedure Class Three

ARREST AND THE WARRANT CLAUSE

Basic Concepts Arrest = seizure under 4th Amendment Not all custodial arrests require warrant However, all custodial arrests require probable cause PROBABLE CAUSE IS LYNCHPIN

Why Should We Care? Invalid arrest does not render continued confinement unlawful Invalid arrest in and of itself does not void resulting conviction Query: Why is the validity of arrest important for Defendant?

Arrest in Public Query: Is warrant required to make valid arrest in public for felony offense? Must officers demonstrate “exigent circumstances” [some emergency-type situation]?

Exercise Assume: You are a police officer. Why get an arrest warrant if you don’t have to? Why not just wait for your suspect to put in an appearance on the street? Task: ID at least 3 reasons

Excessive Force Can how an arrest is made (the force used) violate 4th Amendment?

Excessive Force Reasonable inquiry –depends on circumstances –objective standard Factors –severity of crime –whether immediate threat –whether actively resisting

Relief & Protections If officer arrests someone in public without a warrant, how do we ensure that the arrest was in fact based on probable cause?

Determining “promptness” Probable cause hearing 0-48 hours –presume OK systemic –no systemic challenge individual –can still show individual challenge Hearing 48+ hours –burden shifts to gov’t

Arrests at Home Do police need arrest warrant enter home to make arrest? Distinguish –“routine” vs. exigent –consentual

Arrests at Third Party’s Home What documents gets police across the threshold? What document authorizes taking suspect into custody? Can arrested person challenge authority of police to enter 3rd party’s home?

Resident v. Guest v. On Premises Your status in your home Your status as overnight guest in someone else’s home Your status as someone “on the scene”

Material Witness General test: arrest & detain OK if impracticable to secure presence by subpoena Most states lack statutory limit on length of detention No constitutional right to $$$ compensation

STOP AND FRISK

Terry Doctrine “Stop and Frisk” Seizure Search

Terry v. Ohio When “seized”? –officer accosts and restrains freedom to walk away Less than arrest Detention Limited in duration How “searched”? –pat down –Frisk Less than full search Scope: weapons purpose: officer protection

Terry’s Balancing Test Gov’t need for S/S vs. Degree of invasion

Terry Test Reasonable suspicion Less than probable cause –so less than needed for arrest Objective More than “inarticulate hunch”

Terry Applications

Sources of Information Tip or personal information permissible Could be less than needed to show probable cause for either: –full blown search –arrest

Routine Traffic Stops Drivers Passengers Bright Line Rule

Occupants of Residence Conduct: police require occupants to remain while search warrant executed Always Reasonable

Encounter/Stop Distinction

Sliding Scale Encounter  Seizure  Arrest Nothing  Reas. Susp.  P.C.

Encounter, Stop, or Arrest? If police/civilian interaction is “encounter” rather than stop, it is completely outside 4th Amendment. It needs no justification. Terry stop requires reasonable suspicion Arrest requires probable cause

Encounter: “Free to Leave” Test Mendenhall test Person “seized” only if, in view of all circumstances surrounding, a reasonable person would have believed he was not free to leave Objective test

Airport Encounters Officer conduct –Approaching individual on street or public place –Asking if willing to answer questions –Putting questions to him

Airport Encounters Civilian Options –Need not answer –Decline to listen & walk away

Airport Encounters, con’t What legal impact if civilian walks away? –May NOT be detained, even momentarily, without reasonable, objective grounds –Refusal to listen, without more, does not provide that reasonable suspicion

Factory Sweeps Held no “seizure” despite fact guards were posted at doors … walkie-talkie … badges …. approached at work station and asked questions about citizen. Query: How does this fit with Mendenhall free to leave test?

Bus Sweeps Facts: Uniformed officers board a stopped bus, asked to inspect passenger’s ticket & ID … explain looking for illegal drugs … ask for consent to search luggage

Bus Sweeps Query: How does this fit with Mendenhall free to leave test? Consider: Bostick; Drayton -- When is a bus sweep a seizure?

Impact of Officer Intent intendedShould it make a difference whether officer intended to terminate person’s freedom of movement or if her conduct merely had that effect?

Refusal to Submit Seizure in this context means taking possession Two types of “seizure”: –officer has physically touched OR –submission to assertion of authority Major modification of Mendenhall free to leave; must show more

Role of Flight Sudden flight can create reasonable suspicion justifying Terry stop No per se rule

Grounds for Terry Stop Can anonymous tip provide reasonable suspicion? “Sufficiently corroborated” -- as to what factors: illegality or heavily predictive

Profiles Race Drug courier

Limits on Terry Searches Only justifiable for protective purposes Does not permit search for evidence

Terry Searches Beyond the Person “Protective Sweep” of car Other persons “Protective Sweep” of premises

STOP VS. ARREST Forced Movement Identification Interrogation Temporal Limits Show of Force

Detention of Property Can Terry’s temporary detention apply to things as well as people?