1. Criminal Investigation: Laws of Arrest, Search and Seizure Chapter 2

2. Goals Explain probable cause and its role in determining whether or not privacy rights have been violated. Understand the difference between detention and arrest Understand how the 4 th, 5 th and 14 th Amendments protect privacy rights and the complications in determining which arrests, searches & seizures are reasonable.

3. Why We Care? Right to privacy acts as a check on government intrusion. Protects the wrongly accused from police or prosecutorial misconduct. Ensures fair treatment for all citizens.

4. Constitutional Foundation The Bill of Rights (first 10 Amendments) only restricts actions by the federal government, but doesn’t guarantee the same protections from state governments

5. The Fifth Amendment The Due Process clause provides “… nor shall any person be deprived of life liberty or property without due process of the law,” Remember that the first 10 Amendments only restrict the powers of the federal government and not the states

6. Post Civil War The 13 th, 14 th, and 15 th Amendments were ratified to guarantee the freedoms and equal protection of the law for all citizens, especially former slaves

7. The Fourteenth Amendment “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws Before being ratified in 1868, the people never before had granted the federal government the power to tell the states what they could or could not do

8. 1884 Hurtado V. California In this case the Supreme Court was asked to apply the first 8 Amendments of the Constitution to the states through the due process clause of the 14 th Amendment in an attempted process which became known as the “short hand doctrine”. The Supreme Court rejected the case stating that the people would have specifically stated in the 14 th Amendment that the Bill of Rights should apply to the states.

9. The Fourteenth Amendment The Supreme Court, instead of using the “shorthand doctrine”, reviewed cases on a case-by-case basis to determine whether or not the Bill of Rights should apply to the states through the 14 th Amendment Through case precedence, nearly all aspects of the Bill of Rights now apply to the states through the due process clause of the 14 th Amendment

10. Detention Is a temporary and limited interference with the freedom of a person for investigative purposes An officer must have reasonable suspicion to detain somebody for investigation Reasonable Suspicion- A reasonable belief by a reasonable person with similar experience and training as the officer that crime is afoot and the person detained may be involved in the crime. The detention must be brief with limited investigation, and the officer must then decide either to release or arrest the subject

11. Arrest Probable Cause must exist to place somebody under arrest Probable Cause defined- A reasonable belief, based on the reasonable person standard, that a crime was committed and that the arrested person committed the crime. Criminal Charges- don’t always follow arrest

12. Probable Cause Continuum No Information A Hunch Reasonable Suspicion Reasonable Grounds Probable Cause Preponderance of the Evidence Beyond a Reasonable Doubt

13. Arrest-continued Three essential factors must exist for an arrest to occur Intention- Officer must have the intention of taking the suspect into custody Authority- Officer must have the legal right to take the suspect into custody Custody- Physical restraint by the officer or voluntary submission by the suspect Private Person’s Arrest- examples

14. Arrest Procedures An arrest may be made under the following circumstances 1. Warrant is issued by a Judge 2. When a misdemeanor is committed in the presence of an officer 3. When the officer has probable cause to believe that a felony has been committed and the suspect committed the felony, whether or not in the officer’s presence 4. Statutory instances 1. Domestic Violence (misdemeanor cases) 2. DUI cases

15. The 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.

16. Reasonable Expectation of Privacy The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched. Did the person subjectively (actually) expect some degree of privacy? Is the person's expectation objectively reasonable, that is, was the officer in a place he had the right to be when he viewed the offense Only if both questions are answered with a "yes" will a court go on to ask the next, most important question: Was the search reasonable?

17. Reasonable Privacy Explained “Your home is your castle”. There is an expectation of privacy in your home, on your person, and personal work space No expectation of privacy in shared common areas or public places open to the view of others The visible areas of a car are not private:

18. Privacy only from Gov’t Intrusion Private security personnel are exempt: At the present time, the Fourth Amendment does not apply to searches carried out by non- governmental employees like private security guards. Private persons are exempt as well

19. Exclusionary Rule Illegally seized evidence generally cannot be used: If a court decides that a search or seizure was illegal, the evidence gained from the search cannot be used against the defendant. The defendant can still be tried and convicted, but only legal evidence can be used at the trial.

20. Fruit of the Poisonous Tree In addition to being excluded as evidence against the defendant, evidence resulting from an illegal search may not be used to discover other evidence.

21. Limits to the 4 th Amendment 1. Search incident to a lawful arrest 2. Stop and frisk 3. Consent 4. Plain view 5. Hot pursuit 6. Vehicles 7. Emergencies 8. Border and Airport

22. Search Incident to Lawful Arrest Police may search a lawfully arrested person and the area immediately around that person (for hidden weapons or for evidence that might be destroyed). Chimel v. California Protective Sweep: Maryland v. Buie

23. Stop and Frisk (Terry Search) Police who reasonably think that a person is behaving suspiciously and is likely to be armed may stop and frisk the suspect for weapons. Search may only be for weapons. Terry v. Ohio

24. Consent When a person voluntarily agrees, the police may conduct a search without a warrant or probable cause. Consent can transform an otherwise illegal search into a legal one. A person can be polite and respectful while still asserting your rights.

25. Plain View If an object connected with a crime is in plain view an can be seen from a place where an officer has a right to be, it can be seized without a warrant. “Plain smell” and “plain hearing” count, too.

26. Hot Pursuit Police in hot pursuit of a suspect are not required to get a search warrant before entering a building that they have seen the suspect enter, Evidence found during hot pursuit of a suspected felon is admissible, even against people totally unrelated to the pursuit.

27. Vehicle Searches A police officer who has probable cause to believe that a vehicle contains illegal items can search it without a warrant. This is based on the idea of exigent circumstances and a reduced expectation of privacy in your car.

28. Emergency Situations In certain life threatening emergencies, the police don’t have time to get a warrant. The evidence they find in the course of dealing with the emergency is admissible. “Cop Hears Screams” Hypo.

29. Warrants- Time of service Hours of warrant service Search Warrant- 7AM-10PM Misdemeanor Arrest Warrant- 6AM-10PM Felony Arrest Warrant- Any time day or night

30. What is Probable Cause? A reasonable belief that a specific person has committed a crime, and that a search in a specific location will produce evidence of a specific crime. “Increased Power Consumption” Hypo

31. Is There a Seizure? Property is ‘seized,’ when there is a significant interference with a person’s property, even temporarily. This can also include the seizure of people: The police have seized a person if that person believes that he or she has been seized and that belief is objectively reasonable. A show of authority can be a seizure even without any physical force. A seizure may also occur when a person objectively believes her property (like a wallet) has been seized.

32. Hypothetical: The House Party An officer gets a call about a noise complaint. Upon arrival, it is clear there is a large party going on inside the house. The officer knocks on the door and one of the residents comes outside and shuts the door behind him. The officer asks this person if she can come inside the house. What if this person said yes, but this person was a non-resident? Would it matter if the officer asked the person whether or not they were a resident?

33. The House Party: Part 2 Assuming no resident has given the police permission to enter: When a partygoer opens the door to leave, he opens it wide and the officer can see a keg of beer, people who appear to be under 21, and glass pipes that are often used as drug paraphernalia.

34. The House Party: Part 3 Assuming that the partygoers leave from a side-door and the police have not seen any objectionable material inside: What happens if the partygoer in the front- yard is clearly intoxicated, and appears to be underage? What happens if the partygoer walks out of the back yard and onto the side walk?