CONDUCTING CONSTITUTIONAL SEIZURES

Chapter 9

Introduction

One of the most intrusive and powerful of all governmental actions is the actual taking into physical custody, or the arresting, of an individual.

The police are the only ones to have this power.

Because of the power government has through arrest, constitutional limitations are in place to prevent abuse.

Intensity and Scope of a Seizure:Stop and Arrest Compared Law enforcement involves decisions and

discretion. What begins as a simple stop may turn into

an arrest and a full body search. A stop is considered different than an

arrest. Terry v. Ohio established that the authority to

stop is independent of the power to arrest. A stop is not an arrest, but it is a seizure within

the meaning of the 4th Amendment and requires reasonableness.

Investigatory Stops

Police have constitutional authority to stop people to investigate even before they can lawfully arrest them.

For an investigatory stop to be constitutional, the officer must have articulable reasonable suspicion.

The officer has to be able to explain in detail what specifically was suspicious. The totality of the circumstances (whole

picture) must be taken into account.

Establishing Reasonable Suspicion United States v. Pavelski (1986)

In the totality of circumstances test, the standard of proof is less than reasonable belief or probable cause.

It must be more than a mere hunch or even general suspicion and cannot be a “fishing expedition” based on a whim or a “gut feeling things were really wrong”.

Informants and Anonymous Tips Florida v. J.L. (2000)

An anonymous tip has been held to lack sufficient reliability to establish the reasonable suspicion for a Terry stop, given the totality of the circumstances. This case is different from Terry because the

suspicion did not arise from an officer’s personal observation, but from an anonymous source.

Flight from Police

Illinois v. Wardlow (2000) The Court determined that reasonable suspicion

to chase is NOT automatic when people run. The Supreme Court ruled that Wardlow’s presence in a

high-crime area was a relevant fact that officers could consider in deciding whether they had reasonable suspicion that he was involved in criminal activity.

Florida v. Royer (1983) Refusing to talk to the police is not unlawful

behavior.

Length of Stop

United States v. Sharpe (1985) How long a stop may last depends on

factors that indicate the suspect was not detained an unreasonably long time. The purpose of the stop. The reasonableness of the time used for the

investigation that the officers wish to conduct.

The reasonableness of the means of investigation used by the officer.

Protective Actions During Stops Terry allows officers to take necessary steps

to protect themselves in the circumstances warrant such measures. They can draw their weapons. Request backup. Handcuff individuals or place them in the back of a

squad car Depending on the circumstances, a frisk may

be allowable during an investigatory stop. Reasonable suspicion that the detainee may be

armed and dangerous.

The Controversy Over Pedestrian Stops Police stop over one million people each

year and question them.

The majority are Black and Hispanic.

Civil liberties advocates say these practices are racist and do not deter crime.

Police departments argue that such stops are valuable that turns up illegal weapons and drugs and prevents more serious crime.

Traffic Stops

The operation of a motor vehicle is considered a privilege However, the driver and occupants remain protected by the

Constitution

Being stopped by the police for no or insufficient reason is considered unreasonable and is a constitution violation of 4th Amendment rights

Officers may stop motorists only for violations of the law, including equipment violations, erratic driving or invalid vehicle registration

Considered a petty misdemeanor Miranda warnings are not required, the person is not under

arrest

Traffic Stops

Pennsylvania v. Mimms (1977) The Court ruled that one a police officer has

lawfully stopped a vehicle for a traffic violation, they may order the driver out of the car.

Even without suspicion of other criminal activity or threat to the officer’s safety.

Once the driver is out of the car and the officer then reasonably believes the driver may be armed and dangerous, the officer may conduct a frisk.

Traffic Stops

Ordering the driver out of the car is permitted as a safety precaution for the police once a lawful stop has been made.

The Court has again conveyed their safety concern for police personnel by permitting the passengers to be ordered out of the car as well.

Traffic Stops

Officers have broad discretion in how they will deal with traffic law violations and in many instances may cite the driver, issue a summons for a required court appearance or arrest and jail the defendant.

United States v. Tharpe (1976) If police make a stop for a traffic violation and

are reasonably suspicious that the situation is dangerous, they can order both the driver and all passengers out of the car and frisk them.

Traffic Stops

Michigan v. Long (1983) If a frisk of one of the occupants of a car is

permitted, the police may also check the passenger compartment for weapons.

Whren v. United States (1996) The Court held that as long as probable cause

existed to believe that a traffic violation occurred, stopping the motorist was reasonable.

Pretext stops allowed. Stopping a vehicle to search for evidence of a crime

under the guise of a traffic stop.

Roadblocks and Checkpoints A roadblock stops vehicles without suspicion of criminal

activity by the person stopped. Police are checking everyone, rather than a particular

individual.

Brown v. Texas (1979) The Supreme Court created a balancing test that requires

the courts to evaluate the lawfulness of roadblocks and listed factors to consider: The gravity of the public concerns that are service by the

roadblock. The degree to which the roadblock is likely to succeed in

serving the public interest. The severity with which the roadblock interferes with

individual liberty.

Stops at International Borders and Checkpoints

Foreigners seeking entry into the United States for the first time hardly have any 4th Amendment rights at the border.

They can be stopped and asked questions without reasonable suspicion.

Their vehicles and belongings can be searched without probable cause.

Once they are legally inside the United States, they are entitles to constitutional protection.

Stops at International Borders and Checkpoints

United States v. Martinez-Fuerte (1976) Checkpoints on or near international borders

need no justification to stop all vehicles to check for illegal entrants into the United States.

Supreme Court has held that the government’s interest in protecting the nation’s borders alone justifies stopping any vehicle or individual. Stops may not be done on the basis of ethnicity,

religion or the like.

Stops at International Borders and Checkpoints

United States v. Brignoni-Ponce (1975) Court states the border patrol officers could detain

and question, as opposed to actually searching, people in a car if reasonable suspicion existed, adding that within 100 miles of the international border, reasonable suspicion was all that was needed.

United States v. Flores-Montano (2004) Congress has always granted the authority to

conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties to prevent the introduction of contraband into this country.

An Arrest or Not?

Detention tantamount to arrest (de facto arrest)- a situation in which the police take someone in for questioning in a manner that is, in reality, an arrest, but without the requisite probable cause. An illegal arrest of there is no probable

cause.

An Arrest or Not?

Kaupp v. Texas (2003) Kaupp gave a statement that was used to convict him of murder. Supreme Court overturned the conviction, noting that the police

lacked probable cause for the de facto arrest, which made it illegal and as “tainted fruit” the statement was

ruled inadmissible. Dunaway v. New York (1979)

Supreme Court ruled that seizure was illegal because the defendant was not free to leave.

The seizure was more than a simple stop and frisk, and should have been based on probable cause.

“Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the 4th Amendment (Supreme Court).

Arrests

Arrest- taking a person into custody To arrest is to deprive a person of liberty by

legal authority. Taking a person into custody for the

purpose of holding him to answer a criminal charge. The general guideline is that a person is under

arrest if a reasonable person would believe that under the existing circumstances, they were, in fact, being detained by the police and not free to go.

The Elements of an Arrest

The elements of an arrest are:1. Intending to take a person into

custody2. Exercising authority to do so3. Detaining or restraining the person to

be arrested and4. The arrestee understanding what is

happening

When Arrests May Be Lawfully Made Officer can usually make a lawful

arrest:1. For any crime committed in their

presence2. For any felony if they have probable

cause3. With an arrest warrant

Warrantless Arrests for Crimes Committed in the Presence of an Officer If a police officer observes a crime being

committed, they have the authority to arrest those involved in committing the crime.

State v. Pluth (1923) The crime or attempt must actually take

place in the officer’s presence. The officers must know a crime is being

committed.

Warrantless Arrests for Crimes Committed in the Presence of an Officer In many states, officers need to obtain a

arrest warrant for a misdemeanor not committed in their presence.

They may arrest for a misdemeanor not committed in their presence if the suspect might flee or might conceal or destroy evidence or if the incident involves a traffic violation.

There are exceptions. The suspect may flee or destroy evidence.

Warrantless Arrests Based on Probable Cause

If an officer has sufficient information to reasonably believe, given the totality of the circumstances: That a crime is occurring or has

occurred And that the suspect is the offender

The officer may arrest without a warrant Only for a felony level crime

Warrantless Arrests Based on Probable Cause

United States v. Watson (1976) An arrest without a warrant in a public

place is valid if it is based on probable cause.

Probable cause can be based on anything an officer becomes aware of through the senses. Observational probable cause Informational probable cause

Arrests with a Warrant

To be reasonable under the 4th Amendment, warrants must be based on probable cause. The warrant must name:

The person making the complaint. The specific offense being charged. The name of the accused. The basis for the probable cause.

The facts must be sworn as true.

Where Arrests May Be Made

They can be made in public places without a warrant if probable cause exists.

Even if a person retreats to a private place, the warrantless arrest based on probable cause is valid.

Payton v. New York (1980) Police may not enter a private home to

make a routine felony arrest unless exigent circumstances exists, as in hot pursuit.

The Knock and Announce Rule Revisited Officers can break a door or a window,

or break a car window to make an arrest if necessary. They must first knock and announce their

authority and purpose before breaking into a dwelling.

The intent of the knock and announce rule is to prevent the occupants from responding with force because they do not know who the intruders are.

The Knock and Announce Rule Revisited Exigent circumstances may justify an

entry by police without first announcing their presence, including: When victims or hostages may be inside When a crime is actually in progress When evidence or contraband can be

destroyed When making the officer’s presence

known would place them in danger

The Knock and Announce Rule Revisited Officers can request a no-knock

arrest warrant to permit them to enter without announcing themselves. Gives the officers the element of

surprise When it could be dangerous for the

officer or citizens Destruction of evidence is a concern

Pursuit

Fresh pursuit A situation in which police are immediately in pursuit of

a suspect and may cross state jurisdictional lines to make an arrest of a felon who committed the felony in the officers’ state.

The suspect will be charged with crimes in all jurisdictions involved.

Hot pursuit The period during which an individual is being

immediately chased by law enforcement and, because of the exigencies of the situation, officers are allowed to forcibly enter constitutionally protected areas, such as a home, without a warrant.

Fresh and Hot Pursuit

United States v. Santana (1975) Established that a hot pursuit justifies forcible

entry into an offender’s home without a warrant.

Minnesota v. Olson (1990) A warrantless intrusion may be justified by

hot pursuit of a fleeing felon, Or imminent destruction of evidence, Or need to prevent a suspect’s escape, Or the risk of danger to the police or to other

persons inside or outside the dwelling.

Use of Force

There is legal authority that permits reasonable use of force and consequences when that force becomes excessive.

Police know that what may appear to be excessive use of force is not always the case.

Suspects on intoxicants or those dealing with mental issues sometime are unaware of police efforts to subdue them. What may appear brutal is actually a strategic

and controlled escalation of the use of force continuum.

What is Reasonable Force?

By law, police have the authority to use force if necessary to make an arrest, keep the peace, or maintain public order.

Tennessee v. Garner (1985) Court held, “Unless it is necessary to prevent

the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” deadly force is no longer allowed.

What is Reasonable Force?

When making an arrest, police officers can use only as much force as is needed to overcome resistance.

If the suspect does not resist, no force can be used. Excessive force may cause the officer to be sued.

Officers should be trained in all aspects of use of force, including the law, weapons used and when different degrees of force are appropriate.

Use of Less-Lethal Force

We have seen an increase in the use of less-lethal weapons.

Examples are: Physical restraints Light Acoustics Chemicals Impact projectiles Electric sources (TASERS)

The Use of TASERS

Controversial less-lethal weapon. The devices rarely cause death but,

The use of a TASER might be considered unreasonable excessive force if the subject is neither a flight risk, a dangerous felon nor an immediate threat.

Use of Deadly Force

Deadly force is restricted to cases of self-defense or to save the life of another.

Deadly force Force that, when used, would lead a

reasonable officer objectively to conclude that it poses a high risk of death or serious injury to its target.

Citizens Arrest

Is the detention by a non-government agent of one accused of an illegal act.

The law of citizens arrest is what private security officers use.

Private security officers are not bound by the 4th Amendment.

Any private citizen making a citizens arrest, will be held liable if they violate any civil or criminal laws and when they do not follow the requirements of the code pertaining to citizens arrest.

Right of Those in Custody

People under arrest: Have the right to know the charges

against them. Have the right to make a phone call. Have the right to appear before a

magistrate without undue delay.

Right of Those in Custody

Prisoners: Give up many of their Fourth Amendment

rights by virtue of being arrested. Have the right to be treated reasonably and

to make their whereabouts known. Have the right to access legal counsel. Correctional officers are permitted to use

reasonable force in situations of self-defense, defense of third persons, upholding prison rules, preventing crime and preventing escape.

Immunity from Arrest

Certain classifications of people have immunity from arrest because of federal or state statutes. They are: Foreign diplomats, including:

Ambassadors, ministers their assistants and attaches and their families and servants

Foreign consuls and their deputies, as well as some legislators and out-of-town witnesses