Chapter 8 - Conducting Constitutional Seizures

© 2015 Cengage Learning

Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 8Conducting

Constitutional Seizures


The elements of the seizure are:o Intending to seize an object (includes a

person)o Exercising authority to do soo Physically controlling the object, ando The understanding of what is happening such

that a reasonable person would not feel free to leave.


Facts: Brower was killed when the stolen car that he had been driving at high speeds for approximately 20 miles in an effort to elude pursuing police crashed into a police roadblock.

Issues: Whether police used “brutal, excessive, unreasonable and unnecessary physical force” in establishing the roadblock, and thus effected an unreasonable seizure of Brower, in violation of the Fourth Amendment.

Holding: No. Rationale: Under the Fourth Amendment, a person is seized

when his freedom of movement is intentionally terminated. The court ruled that the defendant was not seized by the police setting the roadblock and he only became seized under the meaning of the Fourth Amendment when he actually crashed into the tractor trailer.


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.o Terry v. Ohio established that the authority to stop

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

meaning of the 4th Amendment and requires reasonableness.



If an officer suspects a person is presently armed and dangerous, a frisk may conducted without a warrant.

A frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized.

Factors contributing to the decision to frisk include: Suspect that flees. A bulge in the clothing. Suspect’s hand concealed in a pocket. Being in a known high crime area and suspect crime would

likely involve a weapon.


Officers may stop motorists:o For violations of the law such as

equipment violations, erratic driving, and invalid vehicle registration.

o And when an occupant inside the vehicle is suspected of having committed a crime.


Facts: Pavelski was convicted of armed robbery after a police officer stopped his car for a sharp right turn and out of state plates.

Issues: Was there sufficient reasonable suspicion to justify the stop?

Holding: No. Rationale: In the totality of circumstances test,

the standard of proof is less than reasonable belief or probable cause. However, 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”.


United States v. Sharpe (1985)o 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.


Facts: Police stopped a car without probable cause to check the driver’s license and auto registration.

Issues: Did the officer's search of Prouse's automobile constitute an unreasonable search and seizure under the Fourth Amendment?

Holding: Yes. Rationale: The Court held that the privacy

interests of travelers outweighed the state interests in discretionary spot checks of automobiles.


Facts: After stopping a driver suspected of DUI, the officer asked McCarty to get out of the car and he could not stand up. The officer decided he would be charged with DUI and asked if McCarty had been drinking. He said he had and was arrested.

Issues: Was Miranda required? Holding: No. Rationale: A person temporarily detained

pursuant to a traffic stop is not in custody for purposes of Miranda and the brief detention occurs in public.


The detention of an individual. The taking of a person into custody in a manner

authorized by law for the purpose of presenting that person before a magistrate to answer for the commission of a crime.

The general guideline is that a person is under arrest if a reasonable person would believe that under the existing circumstances and when viewed objectively, there was a restraint on movement that one associates with formal arrest and that the person was, in fact, been detained by the police and not free to go.


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


Generally, lawful arrests can be made in one of three ways.

Officers can usually make a lawful arresto For any crime committed in their presence,o For any felony if they have probable cause,o Or with an arrest warrant.


Facts: Police officers determined that a respondent matched the profile of a drug trafficker. They took Royer’s ID and asked him to go with them into a small room where they asked him if he would consent to a search of his luggage; he handed them his key. Drugs were found.

Issues: Is the permissible extent under the Fourth Amendment of a temporary Terry stop exceeded when a police officer asks a person suspected of criminal activity to go into a small closed room without telling them they may leave and they end up there for fifteen minutes?

Holding: No. Rationale: This detention was a more serious intrusion

on his personal liberty than that is allowable based on mere reasonable suspicion.


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)o Police may not enter a private home to make

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


When government agents search a person incident to arrest, they may use as much force as reasonably necessary to Protect themselves, To prevent escape, Or the destruction or concealment of

evidence. The reasonableness of the police action

determines the lawfulness of it.


Legitimate use of force in arrests includes:o Self-defense (a right common to all persons)o Defense of others (a duty assigned to police personnel)o Effectuate an arrest (a vested authority granted by law)o Prevent an escape (a vested authority granted by law)o Overcome resistance (a vested authority granted by law)

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

The amount of force must be reasonable.


Facts: A 15-year-old boy was shot in the back of the head and killed as he began climbing over a fence after being told to stop by police responding to a prowler call.

Issues: Can deadly force be used to apprehend a fleeing, nonviolent felon?

Holding: No. Rationale: Deadly force is not justified when the

fleeing felon presents no immediate danger to the officer or to others. A police officer may not seize an unarmed, non-dangerous felony suspect through the use of deadly force.


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.

The Court will apply an objective reasonableness standard to the officer’s conduct.


The only justification for use of deadly force is self-defense or protecting the lives of others.

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.


Certain classifications of people have immunity from arrest because of federal or state statutes.

Many states have granted their legislatures immunity from civil lawsuits.

Officers who use reasonable force in a lawful manner are also immune from arrest because their actions do not violate the law. However, officers who use excessive force can be subject to criminal or civil sanctions.

Foreign diplomats, including ambassadors, ministers, their assistants and attachés have complete immunity from arrest.

Education

Chapter 8 - Conducting Constitutional Seizures