1. Criminal Procedure Class Three

2. ARREST AND THE WARRANT CLAUSE

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

4. 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?

5. 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]?

6. 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

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

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

9. 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?

10. 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

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

12. 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?

13. 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”

14. 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

15. STOP AND FRISK

16. Terry Doctrine “Stop and Frisk” Seizure Search

17. 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

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

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

20. Terry Applications

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

22. Routine Traffic Stops Drivers Passengers Bright Line Rule

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

24. Encounter/Stop Distinction

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

26. 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

27. 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

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

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

30. 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

31. 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?

32. 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

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

34. 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?

35. 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

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

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

38. Profiles Race Drug courier

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

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

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

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