Name: Lauren HemingwayLesson: Arrest, Street Law pp. 126-132Source: Adapted from Lauren Hemingway & Andy Jennings Team

Teaching Demonstration and Shared Student Lesson Plan, Washington Supplement pp. 70-71

Time and Day Taught: 50 minutes, Feb. 9, 2009

I. Goals: A lesson on arrest helps students:a. determine how the Fourth Amendment protects against unreasonable

arrest/detainment;b. describe when an arrest is valid under the Fourth Amendment;c. define probable cause and reasonable suspicion; andd. know what to do if arrested.

II. Objectives:a. Knowledge Objectives: As a result of this class, students will:

i. know that an arrest/detainment is a “seizure” of their “person” under the Fourth Amendment of the Constitution;

ii. know the definition of arrest/detainment;iii. know that an arrest or detainment is only constitutional if it is reasonable;iv. know that an arrest or detainment is presumed reasonable if the person

gives consent or if the police have a warrant;v. understand the requirements for reasonable suspicion to detain a person

and probable cause to arrest a person without a warrant; andvi. know what to do (and not do) if s/he is ever arrested.

b. Skills Objectives: As a result of this class, students will be better able to:i. analyze when an interaction with the police becomes a detainment;

ii. identify the differences between probable cause and reasonable suspicion;iii. use the knowledge continuum to determine how much information is

enough for probable cause to arrest someone or reasonable suspicion to detain someone; and

iv. respond when questioned by the police.c. Attitude Objectives : As a result of this class, students will be better able to feel:

i. that controlling crime is important;ii. more secure in their rights; and

iii. confident in dealing with the police.III. Classroom Methods

a. Lecture on Arrest and the Fourth Amendment (20-25 minutes)i. Give an overview of the requirements for arrest using the attached

Powerpoint presentation. Click to move between slides while in slideshow mode.

ii. Slide 1

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1. Introduce that today we will be talking about Criminal Law, particularly arrests.

2. Click to go to the second slide which looks the same as the introduction slide but starts the “Crime Clock.”

iii. Slide 21. Ask: Does anyone know how often a crime occurs in the United

States? While the students are guessing, the crimes will start to pop up based on the Crime Clock.

a. Answer: On average, a theft occurs every 4 seconds, a burglary every 13 seconds, and a violent crime occurs every 19 seconds. (Source: Street Law Crime Clock, StreetLaw Student Handbook, p. 74)

2. Explain that, given the frequency of crime, crime is obviously a problem in the United States that we want to contain. Explain that arrest is one way that the police contain and control crime.

3. Explain that we also don’t want to give the police a blank check to arrest whoever they want whenever they want, so we as a society set limits on the power to make arrests.

4. Ask: Does anyone know of any Constitutional provisions that limit arrests?

a. Answer: The Fourth Amendmentiv. Slide 3

1. Ask for a volunteer to read the Fourth Amendment out loud.2. Point out that the main part of the Fourth Amendment is the “the

right of the people to be secure in their persons, houses, papers, and effect, against unreasonable searches and seizures.”

3. Click to add in the animation illustrating the definition of arrest/detain.

4. Explain that when the police arrest or detain someone, it is a seizure of the person.

v. Slide 41. Explain that under Washington law, a seizure of a person by the

police occurs at the point at which a “reasonable person would not feel free to leave.”

2. Explain that there are two types of seizures of the person: arrest and detainment.

a. Arresti. Explain that an arrest occurs when the police tell

you that you’re under arrest, probably slap on some handcuffs, and haul you to the local jail.

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ii. Ask a student: If you were in the situation I just described, would you feel free to leave?

iii. Answer: They will say no – that’s clearly a seizure of the person.

b. Detainmenti. Explain that this type of seizure is tricker to identify

because a detainment may occur when the police stop you (but don’t arrest you), but a seizure of the person doesn’t happen every time a police officer stops you.

ii. Remind the students that, to be a seizure, the circumstances must be such that a “reasonable person would not feel free to leave.”

iii. Pose two scenarios to the students: 1. Ask: If a police officer stopped you on the

street and asked you how your day was going, would you feel free to leave?

a. Answer: Probably – This stop is probably not a detainment.

2. Ask: If a police officer grabbed you by the arm and said, “You have to come with me,” would you feel free to leave?

a. Answer: Maybe not – This stop could be a detainment.

vi. Slide 51. Remind the students that the Fourth Amendment only prevents

unreasonable seizures. Explain that a seizure must be reasonable to be valid.

2. Explain that a court will generally presume that a seizure is reasonable if the person gives consent or if the police have a warrant.

a. Explain that courts presume reasonableness of a seizure based on consent as long as the consent is valid.

i. Give the following hypothetical: If the police approach you and ask, “could you please come down to the station with me and answer some questions?” and you answer, “yes,” then you’ve consented to the subsequent detainment.

ii. Point out that by consenting, they give up the right to challenge the validity of the detainment later.

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Make it clear that by consenting, you are relinquishing a right that cannot be recovered later.

b. Explain that a seizure based on a warrant is presumed reasonable because a court has already determined that the police have satisfied the requirements to arrest the person before it even issued the warrant.

vii. Slide 61. Explain that the police don’t always need to have a warrant or your

consent to detain or arrest you. 2. Explain that, for an arrest, the police need (click to add animation)

probable cause. a. Click to add the definition of probable cause. b. Ask a student to read the definition of probable cause.c. Ask students to point out and define key terms or phrases

which should include:i. “facts” – There must be actual bits of information

backing up the suspicion, not just a funny feeling or a hunch that something is going on

ii. “reasonable police officer” – The standard is adjusted to take into account that law enforcement officers make decisions based on their experience as police officers. They must be a reasonable police officer, however, not an extra suspicious or paranoid one.

iii. “strongly suspicious” – This is something more than a mere hunch or a slight suspicion.

iv. “particular person” – The suspicion cannot be directed toward a whole group, but a single individual.

v. “committed” – A crime must have actually occurred. In many cases, though, planning a crime is a crime in and of itself.

vi. “particular crime” – The office must suspect a particular type of crime, not just that some person is “up to no good” or is a criminal in general.

3. Explain that, to detain a person temporarily, the police need (click to add animation) reasonable suspicion.

a. Click to add the definition of reasonable suspicion.b. Ask a student to read the definition.c. Ask students to point out and define key terms or phrases

which should include:

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i. “officer knows” – Like probable cause, the standard relates to a trained police officer. The officer has to know something, he or she cannot have a mere hunch.

ii. “several minor facts” – A combination of several small facts can be enough. They must be actual facts, not just a baseless hunch.

iii. “a larger fact” – A single large fact may be enough. Again, it must be an actual fact, not just a baseless suspicion.

iv. “points to” – This language is not particularly definitive. The connection does not have to be rock solid.

v. “particular person” - The suspicion cannot be directed toward a whole group, but should focus on a single individual.

vi. “engaging in”- There must be some crime happening or about to happen (again, planning a crime is generally a crime on its own).

vii. “criminal activity” – The activity must be criminal, not just morally repugnant. Point out this is less specific than the “particular crime” language in the probable cause definition.

4. Ask students to compare the two standards. a. Point out that probable cause is a higher standard than

reasonable suspicion.b. Explain that the probable cause standard is higher because

arrest is a more serious seizure than detainment. viii. Slide 7

1. Show the students the information continuum. a. Explain that the continuum lays out how much information

and what kind of information the police may know about a past or future crime. The least amount of information is on the far left (none) and the most is on the far right. Everything else falls in between.

b. Explain each element that falls on the continuum.i. “No Information” -- the officer doesn't know

anything about any particular person or any particular crime.

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ii. “Hunch” -- the officer has a gut feeling that something is not right, but the officer cannot point to any specific facts; it is something like intuition.

iii. “Suspicion” -- the officer knows a minor fact, or has some larger fact that came from an unknown or unreliable source that suggests that evidence may be located somewhere. For instance, an officer stops a person on the street to ask a question and the person quickly puts a hand in a pocket. Or, the officer may find a piece of paper on the street which says that a particular person is selling drugs.

iv. “Reasonable Suspicion” and “Probable Cause” – already defined for the class.

v. “Beyond a Reasonable Doubt” -- the highest amount of proof in the criminal justice system and the amount required to convict a person of a criminal charge.

2. Use this slide and the continuum with the following roleplay.b. Stop-Action Roleplay (20 minutes) based on State v Thierry, 60 Wash. App 445

(1991) (roleplay and case attached at end).i. During the previous class, select four students to participate in the skit and

distribute the appropriate roles to each student (roles attached below).1. Two students will play the roles of police officers while the other

two will play the defendants/arrestees.2. Explain to the actors that their job is to explicitly convey each

action or additional fact one at a time. The goal is to act things out enough that the teacher does not have to add additional narration.

ii. After giving the Powerpoint presentation, explain that the rest of the class will be applying the information continuum to a real life case to determine whether the police have reasonable suspicion or probable cause to do anything.

iii. Set up chairs for the car (facing the audience) and have the defendants sit in them. Use paper props to indicate a gun and bat which will be positioned inside the car. Ask the police roleplayers to stand nearby, where they will be observing the defendants.

iv. Explain the setting to the audience: Downtown Tacoma in the early 90’s. The young men are driving in a 1978 Buick in a high crime area notorious for high incidences of gang activity, drug trafficking, and violence. There is a wooden baseball bat at the driver’s feet and a cocked semiautomatic pistol between the armrests of the front seats.

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v. Say “Action!” and allow action 1 of the skit to progress. After the action, say “Freeze!”

vi. Ask the audience where they think the police are on the information continuum given all the facts known at that given point.

1. Mark their consensus using a sticky note on the screen. Let the students decide by consensus on their own.

vii. As the roleplay progresses, continue to start and stop the action and ask where the class thinks the officers are along the information continuum.

viii. At the conclusion of the roleplay, explain the court’s decision and discuss its reasoning.

1. Holding: The court held that the officers had reasonable suspicion to make the initial investigative stop.

2. Reasoning: The court reasoned that the officers, who worked in a high crime area, had observed behavior that was consistent with their profile of drive-by shootings. Although the circumstances may appear harmless to the average person, they may appear incriminating to a reasonable police officer in light of past experience. The court said that the circumstances at the time of the stop only had to be more consistent with criminal activity than innocent conduct. There is also a balancing of the invasion of personal liberty against the protection of a public interest. The court felt the invasion of privacy by the stop was minimal and easily outweighed by the public interest in preventing drive by shootings in a high crime area.

c. Debrief the case (5-10 minutes depending on the time remaining)i. Ask each of the actors how their roles made them feel about the concept of

reasonable suspicion. 1. When did the police roleplayers feel they had reasonable

suspicion?2. Did the defendant roleplayers feel that what they were doing was

suspicious?ii. Discuss the ethics inherent in the “reasonable police officer” standard and

the use of specific profiles (i.e. drive-by-shooting profile in this case). Ask the students if they think this is a “fair” standard.

iii. Quick Brainstorm: What should you do if you are stopped/questioned by the police?

1. Optional: Distribute ACLU guide for police interaction. http://www.aclu-wa.org/library_files/1204%20English.pdf

IV. Evaluationa. Class exploration of reasonable suspicion concept during the roleplay.b. Class answers/discussion during the debriefing of the roleplay.

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V. Assignmenta. Re-read the text of the fourth amendment. b. Write one page on the following question: Do you agree or disagree with the

courts holding and reasoning in State v Thierry? Why or why not?

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Arrest/4th Amendment Role Play

Instructions for Arrestees

You are going to act out the following scenario in front of your class. The two of you will be

playing the roles of the two arrestees/defendants from an actual case. One of you will play the

role of the driver and the other the passenger. You are asked to act out each fact in the order

listed. After each specific act, the instructor will stop the scene so we can get input from the

audience (your classmates). It will be important for you to remain in character throughout the

entire scene in order to make the skit as real as possible.

Setting:

Downtown Tacoma in the early 90’s. The two of you are driving in a 1978 Buick in a high

crime area notorious for high incidences of gang activity, drug trafficking, and violence. There

is a wooden baseball bat at the driver’s feet and a cocked semiautomatic pistol between the

armrests of the front seats.

Actions

1. Despite the 40-degree temperature you are driving with the windows rolled down.

2. You are also driving with your radio playing very loud.

3. You are both slouched in the front seat of your car.

4. You turn into a parking lot, and although there are many empty spots you drive around

the lot without parking.

5. As you get back to the entrance of the lot you stop the car.

6. At this point, two police officers approach your car. The driver immediately turns down

the radio and the passenger begins to make secretive hand gestures directed at the driver.

7. The officers order you to place your hands up in plain view.

8. As they get closer they order you out of the car, read you your Miranda warnings, and

place you under arrest.

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Arrest/4th Amendment Role Play

Instructions for Police Officers

You are going to act out the following scenario in front of your class. The two of you will be

playing the roles of the two arresting police officers from an actual case. You are asked to act

out each fact in the order listed. After each specific act, the instructor will stop the scene so we

can get input from the audience (your classmates). It will be important for you to remain in

character throughout the entire scene in order to make the skit as real as possible.

Setting:

Downtown Tacoma in the early 90’s. The two of you are on foot patrol in a high crime area

notorious for hi incidences of gang activity, drug trafficking, and violence. While on patrol, you

take notice of a late 70’s model Buick with two teenage occupants.

Actions

1. Despite the 40-degree temperature, the windows are rolled down.

2. You also notice the volume on their radio is very high.

3. Both occupants are slouching very low in their seats.

4. They turn into a parking lot near you and although there are several empty spots they

seem to be driving around without actually looking for a spot.

5. As they return to the entrance of the lot they stop the car.

6. At this point you decide to approach the car. As he sees you, the driver immediately

turns down the radio and the passenger appears to be making hand gestures to the driver.

7. As you get closer, one of you notices a wooden bat at the foot of the driver. You

immediately instruct them to put their hands in plain sight.

8. As the second officer approaches the driver’s side of the car, you immediately see a pistol

between the front armrests at which point you instruct both occupants to get out of the car

and you immediately place them under arrest.

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Court of Appeals of Washington, Division 2.

The STATE of Washington, Respondent,

v.

Marcus THIERRY, Appellant.No. 12782-2-II.

Jan. 30, 1991.

Juvenile defendant was convicted in the Superior Court, Pierce County, John Krilich, C., of carrying loaded pistol in vehicle without license to carry concealed weapon, and he appealed. The Court of Appeals, Worswick, C.J., held that: (1) officer's observation of defendant engaged in behavior consistent with “drive-by shootings” gave officer reasonable grounds for investigatory stop, and (2) defendant's admission that he knew gun was in car, that he controlled and drove car, and fact that he lacked gun license supported conviction.

Affirmed.

WORSWICK, Chief Judge.Marcus Thierry appeals a juvenile conviction of carrying a loaded pistol in a vehicle without a license to carry a concealed weapon. RCW 9.41.050(3). He claims that evidence of the pistol should have been suppressed and that the evidence was insufficient to support the conviction. We affirm.

Substantial evidence and essentially undisputed findings of fact support the following recitation. Two Tacoma police officers, working off-duty as security officers for Pierce Transit, observed Thierry, then under 18, with a teen-age passenger, David Johnson, driving slowly past the 10th and Commerce transit stop in downtown Tacoma about 3 p.m. one winter afternoon. This is a high crime area with a high *447 incidence of gang activity, drug traffic, and violence. Despite the forty-degree weather, Thierry and Johnson had the windows of Thierry's 1978 Buick Electra rolled down, and the radio was playing loud enough to draw the attention of the officers and

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others in the area.

The officers continued to watch Thierry and Johnson, who were both slouched down in the front seat of the car, as they drove into a parking lot on Commerce adjacent to the transit area. Although there were many empty slots in the lot, Thierry drove around it, made no attempt to park, and stopped when he got back to the entrance.

The activity of Thierry and Johnson fit the Tacoma Police Department's profile of drive-by shootings, so the officers approached the car. As they drew near, Thierry immediately turned down his radio, and one of the officers saw a two-foot-long wooden bat on the floor at Thierry's feet. He also noticed that Johnson was making furtive hand motions. The officers, concerned for their personal safety, ordered Thierry and Johnson to bring their hands into view.

As an officer walked to the driver's side of the car, he immediately saw a cocked semiautomatic pistol between the front armrests. The occupants had not been ordered out of the car before the officer spotted the pistol, and neither officer had his own gun drawn. The officers found another gun and knives in the car. After being advised of his rights, Thierry told the officers that he knew the guns were in the car and that he and Johnson, to whom the guns belonged, carried them for their own protection.

Thierry first contends that the initial stop made by the officers was invalid and that the court erred in denying his motion to suppress. We disagree.

[1][2] An investigative stop, although less intrusive than an arrest, is nevertheless a seizure and must therefore be reasonable under the Fourth Amendment to the United States Constitution and under Const. Art. 1, § 7. State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986). When the initial stop is unlawful, the ensuing search and its results *448 are inadmissible as “fruits of the poisonous tree.”    Kennedy, 107 Wash.2d at 4, 726 P.2d 445 (quoting Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

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[3] A stop is justified if the officer has “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.”    Kennedy, 107 Wash.2d at 5, 726 P.2d 445 (quoting **846Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968));   State v. Williams, 102 Wash.2d 733, 739, 689 P.2d 1065 (1984) (in determining propriety of investigative stop, court first asks whether initial interference with the suspect's freedom was justified at its inception);   State v. Rice, 59 Wash.App. 23, 26, 795 P.2d 739 (1990). Thierry contends that since no crime had been reported, the officers could have had no reasonable suspicion that he had committed a crime and, further, that the officers had no reason to believe a crime was about to be committed. Again, we disagree.

[4] The officers, working a high crime area, observed behavior consistent with the profile of drive-by shootings. They were not required to ignore their observations.   State v. Samsel, 39 Wash.App. 564, 694 P.2d 670 (1985). Circumstances that might appear innocuous to the average person may appear incriminating to a police officer in light of past experience, and the officer may bring that experience to bear on a situation, as the officers did here.   Samsel, 39 Wash.App. at 570-71, 694 P.2d 670. It is necessary only that the circumstances at the time of the stop be more consistent with criminal than innocent conduct.   State v. Mercer, 45 Wash.App. 769, 774, 727 P.2d 676 (1986).

Even if Thierry's behavior might arguably be viewed as innocent, the ultimate test for reasonableness of an investigative stop involves weighing the invasion of personal liberty against the public interest to be advanced.   Samsel, 39 Wash.App. at 570, 694 P.2d 670. Officers may do far more if the suspect conduct endangers life or personal safety than if it does not.   See  State v. McCord, 19 Wash.App. 250, 253, 576 P.2d 892,review denied, 90 Wash.2d 1013 (1978). Given the high crime character of the area in question and the drive-by*449 shooting profile, “the facts in existence immediately prior to the stop [did] not comport with innocent activity.”    Mercer, 45 Wash.App. at 775, 727 P.2d 676 (upholding validity of initial stop when officer had approached car in school parking lot because car's dome light was flashing; officer then saw water pipe on ground by the car and six mag wheels of various sizes in car). The officers' intrusion in this case was negligible, and their seizure of the pistol and additional weapons was valid.

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[5] Thierry next contends that the evidence was insufficient because he could not be convicted of the offense absent evidence that he either placed the gun in the car or “possessed” it (either “constructively possessed” it or had it on his person) while it was there. He is incorrect.

RCW 9.41.050(3) states:

A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed weapon and : (a) The pistol is on the licensee's person, (b) the licensee is within the vehicle at all times that the pistol is there, or (c) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle. (emphasis added).

The verbs “carry” and “place” are stated in the disjunctive. The State had to prove that Thierry did one or the other, not both. Indisputably, neither Thierry nor Johnson had a gun license.FN1   Thierry admitted he knew the gun was in the car, and he controlled and drove the car. The State proved that Thierry “carried” the gun in the car.

FN1. A license cannot be issued to anyone under twenty-one. RCW 9.41.070(1)(b).

When construing a statute, we give effect to all language used; no word is superfluous.   Powell v. Viking Ins. Co., 44 Wash.App. 495, 500, 722 P.2d 1343 (1986). We also avoid absurd results.   Briggs v. Thielen, 49 Wash.App. 650, 654, 745 P.2d 523 (1987), review denied, 110 Wash.2d 1020 (1988). Undefined statutory terms (such as “carry”) are given their ordinary meaning.   Northwest Steel Rolling Mills, Inc. v. Department of Rev., 40 Wash.App. 237, 240, 698 P.2d 100,review denied, 104 Wash.2d 1006 (1985).

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*450  “Carry,” as a transitive verb, means “to move while supporting (as in a vehicle or in one's hands or arms.)”  Webster's Third New International Dictionary 343 **847 (1969) (quoted definition is first listed; definition 8a is “to hold, wear, or have upon one's person”). That is the meaning of carry intended by the legislature. Had the legislature intended the word to mean “to have on one's person,” the language in subsection (a), (“The pistol is on the licensee's person,”) would be superfluous.

Substantial evidence supported the juvenile court's conclusion that Thierry carried the gun in his car.   Accord  State v. Williams, 636 P.2d 1092 (Utah 1981);   Municipality of Anchorage v. Lloyd, 679 P.2d 486 (Alaska App.1984).FN2

FN2. Because Thierry admitted he knew the gun was there, we need not consider whether the statute contemplates a defense similar to unwitting possession in controlled substances cases, see State v. Cleppe, 96 Wash.2d 373, 380-81, 635 P.2d 435 (1981). We note, however, that Division III of this court has considered the “strict liability” nature of RCW 9.41.050(3) in deciding that proof of the person's intent or guilty knowledge is not required.   State v. Anderson, 54 Wash.App. 384, 386, 773 P.2d 882 (1989) (rejecting defendant's argument that he did not know the gun was loaded).

Affirmed.

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