CRIMINAL PROCEDURE I OUTLINE
Professor Burke Fall 2010I. INTRODUCTION
There are 3 ways that a criminal case can get to the Supreme Court: 1. Direct Appeal from State Court
2. Direct Appeal from Federal Court
3. Habeas Corpus appeal (prisoner v. warden/guards) Incorporation
A constitutionally based decision that binds both State and Federal government, usually through the 14th Amendment
14th Amendment- prevents the deprivation of life, liberty, and property without due process of law
Selective Incorporation- judges look to see if a right is fundamental to the American system of justice. If it is, it’s incorporated through the 14th Amendment and applies to the States Hurtado v. California (p. #)
FACTS: California allowed criminal defendants to face trial without being indicted by a grand jury. Defendant claimed that this violated his rights.
HOLDING: California’s practice did not violate the Constitution because the state gave the defendant notice through another method (informations).
RULE: Defendants are not entitled to a Grand Jury indictment in State criminal proceedings. Palko v. Connecticut (p. #)
FACTS: Connecticut state law allowed prosecutors to retry a defendant after the prosecutor won an appeal saying that the defendant could be retried. Defendant claimed it was unconstitutional for him to be retried again.
HOLDING: Connecticut State law did not violate the Constitution
REASONING: Cardozo says the Court should look to see if the right is “implicit in the concept of ordered liberty.” The Court would have to agree that ordered liberty implies that a defendant cannot be tried twice. The Federal system follows a Double Jeopardy rule, but the Court found that the Connecticut state law was constitutional. The prosecutor could only retry the defendant after they won an appeal proving that there was some justification for trying the defendant again. Palko has been overturned. States can no longer retry a defendant. The main thing to take away from Palko is Cardozo’s “implicit in the concept of ordered liberty” idea.
FACTS: Duncan was charged with simple battery, which is a misdemeanor under Louisiana state law and punishable by a maximum of two years imprisonment and a fine. Duncan’s request for a jury trial was denied because under Louisiana law, jury trials are only granted in cases which capital punishment or hard labor imprisonment may be imposed. Duncan was convicted and appealed. Court of Appeals found no error.
ISSUE: Does the 6th Amendment right to a jury trial apply to states through the incorporation of the 14th Amendment?
HOLDING: Yes. The Louisiana law prohibiting jury trials for non-felonies violated the 14th Amendment.
RULE: The right to a trial by jury applies to all criminal defendants in state proceedings through the 14th Amendment.
JUSTICE WHITE (Majority)- argued that all states use jury trials. This demonstrates that states have developed a reliance on jury trials and it therefore must be a right to have a trial by jury. White’s view is today’s dominant view. Only wants to incorporate those rights that are fundamental to the system of justice, but thought that the 6th Amendment fell into that category.
JUSTICE HARLAN (Dissent)- looks at the process by which the defendant was convicted and looks to see if it is fair and in accord with the concept of liberty. Said that a jury trial isn’t implicit and that Duncan wasn’t entitled to a jury trial because he was still convicted through a fair process.
The Prominence of Incorporation
Only two rights have yet to be incorporated:
1. Right to a grand jury indictment before a criminal prosecution (Hurtado). California still does not use a grand jury to indict defendants.
2. Bail Clause of the 8th Amendment- which states that defendants have a right to be
considered for bail. However, this may not be incorporated due to the fact that every state already allows. The Supreme Court can only decide if this right is so fundamental that it must apply to the states via incorporation if a state stops allowing bail and a defendant claims it violated his rights.
Retroactivity
When the Supreme Court makes a decision it obviously binds future similar cases. But, should the decision apply to cases that occurred before the date of the decision? The question of retroactive application is one of competing interests and policies.
The Court always gives the benefit of the new rule to the litigant who establishes it, even though that constitutes retroactive application. This is allowed for two reasons:
1. It’s unfair to a defendant to not get the benefit of a rule that another defendant in a similar case gets.
2. To assure that there is a concrete case or controversy before the Court.
A.
IS IT A SEARCH?
The 4th Amendment prohibits unreasonable searches and seizures. If government conduct does not constitute a search or a seizure, the 4th Amendment doesn’t apply and the conduct doesn’t have to be considered “reasonable.”
Katz v. United States (p. #)
FACTS: Defendant was convicted of transferring wagering information by telephone from Los Angeles to Miami and Boston in violation of a Federal statute. Federal Agents attached an electronic listening device to the outside of the public telephone booth that defendant made his calls from.
ISSUES: 1) Does the defendant have a reasonable expectation of privacy in a public telephone booth? 2) Is the 4th Amendment limited to the search of tangible property? 3) Does the 4th Amendment only apply to physical intrusion? 4) Should the Federal agents have obtained a warrant?
HOLDINGS: 1) A person has a reasonable expectation of privacy in a telephone booth. They pay a fee and close the door. 2) The Court held in Silverman that the 4th Amendment “governs not only the seizure of tangible items, but extends to the recording of oral statements, overheard without any technical trespass under local property law.” 3) Same as #2. 4) The government should have obtained a warrant. Allowing the government to proceed without the approval of a neutral and detached magistrate would “bypass the safeguards provided by an objective predetermination of probable.”
RULE: A “search” can include searches of intangible items, such as conversations. No physical intrusion is required.
TWO PRONG TEST: To see if government conduct constitutes a search:
1. The government conduct must offend the citizens subjective manifestation of a privacy interest
2. The privacy interest that was invaded must be one that society is prepared to accept as reasonable or legitimate (objective standard)
Hypo
Katz is walking on the street and sees a man installing something on the top of the public telephone booth, and asks what it is. He is told that it’s a listening device. Katz uses the phone half an hour later. Use the two prong test to analyze
Subjective prong- Would Katz still have an expectation of privacy?
o No. He was told that a listening device was placed there. Half an hour later, he wouldn’t expect that the device would be removed.
What if Katz said he thought the man would have turned off the listening device for him? Use the objective prong.
o No. Most people wouldn’t reasonably expect a phone booth that just had a listening device installed to be turned off simply because Katz asked the man what it was. Most people would expect the risk that their conversation wouldn’t be private.
Notions of Privacy
What makes an expectation of privacy “reasonable?”
o Empirical notions of privacy- what do most people think is the norm?
California v. Greenwood- society doesn’t expect garbage to be private o Normative notions of privacy- what should people expect regarding privacy? The
caution about normative notions of privacy is that if people don’t expect any privacy, people won’t give them any!
Applications of the Katz Principle
1. Subjective Manifestation- individuals must take affirmative steps to protect their privacy interests; otherwise, government conduct may not constitute a search due to the individual’s failure to satisfy the “subjective manifestation” requirement of Katz.
1. Abandoned Property- police detention and investigation of abandoned property usually does not trigger 4th Amendment protection. Many cases hold that the abandonment of property is inconsistent with the retention of any subjective privacy interest. “Whether abandonment has occurred is a question of intent that may be inferred from acts, words, and other objective facts.”
a. United States v. Hoey- police entered an apartment where Hoey had lived and obtained evidence that was used to convict her. The Court held that the police activity did not constitute a search because Hoey had abandoned her apartment; she had not paid rent for six weeks, held a moving sale, and had left the apartment two days before the police entry and had not returned.
b. Smith v. Ohio- defendant was carrying a brown paper bag when he was approached by two undercover police officers. When the officers identified themselves,
defendant threw the bag. Officers tried to grab it and defendant went after it. Court held that defendant did not abandon the bag through his act of throwing the bag after the officer’s inquiry.
c. Abandonment of property often found when a person denies ownership
i. United States v. McDonald- police found contraband in a bag in an overhead bin and asked who it belonged to. Court held that defendant abandoned the bag by not coming forward and claiming it.
2. Open Fields- are not in the protection of the 4th Amendment.
A. Oliver v. United States- Officers drove past Oliver’s house to a locked gate with a “No Trespassing” sign. They walked around a footpath. They followed the path for several hundred yards; the path led to a field of marijuana on the property, which was about one mile from Oliver’s home. Court held that open fields are not within the scope of the 4th Amendment; individuals may not legitimately demand privacy for activities conducted outdoors in fields, except in the area immediately surrounding the home. See pages 44-45 for additional statements.
B. United States v. Dunn- Court held that a barn located approximately 50 yards from the fence surrounding a residence on almost 200 acres of property was outside the curtilage of the home; therefore, police intrusion into that area did not constitute a search.
1. the proximity of the area claimed to be curtilage to the home
2. whether the area is included within an enclosure surrounding the home 3. the nature of the uses to which the area is put
4. the steps taken by the resident to protect the area from observation from people passing by
D. United States v. Hatfield- even if property is within curtilage, a visual inspection of the property from outside the curtilage does not constitute a search
3. Access by Members of the Public- if an aspect of a persons life is subject to scrutiny by other members of society, that person has no legitimate expectation in denying equivalent access to police. There is no search if the police obtain information that members of the public could obtain
A. United States v. White- audio surveillance. Authorities can use the testimony of those associates who have turned to the police; one contemplating illegal activity must realize and risk that his companions may be reporting to the police. Dissent said that the “assumption of risk” principle shouldn’t apply to the 4th Amendment.
B. United States v. Gonzalez- video surveillance. White analysis applies. Court held that employees did not have an expectation of privacy in a public mailroom that society would accept as reasonable; a search was not conducted when officers obtained consent of the hospital to place a surveillance camera in the mailroom.
4. Financial Records
A. California Bankers Ass’n. v. Shultz- Bank Secretary Act required banks to maintain clients identities and microfilm certain checks; had to record each deposit, withdrawal, currency exchange, or payment for any amount over $10,000. ACLU argued that this made the bank agents of government and that the recordkeeping provisions amounted to a search. The Court held that depositors of necessity granted access to banks, so this precluded any legitimate expectation of privacy that the government would not have the same access. 5. Pen Registers
A. Smith v. Maryland- police installed a device in the phone company offices that recorded the numbers defendant called from his phone. The Court stated that “a person has no legitimate expectation of privacy in information that he voluntarily turns over to third parties” and that “when he used his phone, petitioner voluntarily conveyed numerical information to the phone company.” Dissents argued that if the conversation in a phone booth was protected in Katz, the number dialed from the home should be equally protected, and that a person who discloses information for a limited business purpose shouldn’t need to assume that the information will be released to other people for other purposes.
6. Trash
A. California v. Greenwood- officer’s inspection of trash was not a search, and therefore was permissible without a warrant or probable cause. Ruling was based on the theory that Greenwood had no expectation of privacy in property that members of the public had access to.
7. Public Access Area
A. According to the “public access” theory of the Katz test, most acts conducted in public are not protected by the 4th Amendment.
B. United States v. White- officer’s activity of viewing defendant engaged in illegal activity through a bathroom stall was not a search; the design of the stall allowed the officer to view the interior of the stall in a way that was expected of the occupant of the stall.
8. Aerial Surveillance
A. California v. Ciraolo- 4th Amendment was not violated by aerial observation of a fenced-in backyard from 1,000 feet, Ciraolo had erected two fences outside of his property.
B. Ordinary Flights
i. Florida v. Riley- crucial question was whether the public could gain access to the information in Riley’s backyard by way of aerial surveillance (information was partially obscured by a greenhouse). The helicopter was hovering. Court held that it could; the information was available to the public. Dissent wanted to analyze this case based on what the public actually does; they wouldn’t hover and therefore it should be considered a search.
9. Manipulation of Bags in Public Transit
A. Bond v. United States- agent’s manipulation of defendant’s bag on a bus violated the 4th Amendment because the bag was handled in a manner that the petitioner would not expect the bag to be handled; the agent was feeling and probing the bag instead of just patting it. 10. Technology Cases
A. GPS trackers- not a search to track public movement. A GPS tracking device is giving the same information that would be obtained if a person was being followed by police. (Karo). B. Dog sniffs and drug tests- not a search because only illegal activity can be revealed. i. Urine tests have an expectation of privacy because they can detect various things
(pregnancy, medications, illnesses, etc.) Kyllo v. United States (p. 64)
FACTS: Police used a thermal imaging device to determine if defendant’s home had high amount of heat, indicating possible marijuana plant growth. The police officers used the scanner while sitting in a car across the street from defendants home, and from the back of the home as well. The image showed that there was extra heat near the roof and the garage; a warrant was obtained and a physical search led to the discovery of marijuana.
ISSUE: Did the use of the thermal heating device amount to a “search” within the meaning of the 4th Amendment?
HOLDING: Yes.
REASONING: The home is a sanctuary of which any intrusion without a warrant is unreasonable. The Court cannot allow constant evolving technology to erode the minimum expectations of privacy. The use of such devices will constitute a search until their use becomes widely used by the public. All activities in the home are intimate; it doesn’t matter that it was only heat that was seen through the imagine. Dissent was concerned about the implications of this Court’s decision. Once these technologies become widely used, the Court’s decision is actually diminishing the 4th Amendment because such uses would be permissible and the home’s sanctity would be lost. RULE: The use of thermal-imaging devices to detect hear in a private home constitutes a search under the 4th Amendment.
The 4th Amendment is intended to regulate government actors. A search or seizure conducted by a private citizen is not a search of seizure within the meaning of the 4th Amendment.
The 4th Amendment does apply if a private individual is acting, under the
circumstances, as an agent for the government. Government officials cannot avoid the 4th Amendment requirements by enlisting private individuals to do what government officials cannot lawfully do!
Government Investigation Activity Subsequent to Private and Other Legal Searches
1. Walker v. United States- FBI agent viewed a video that they received from a person who mistakenly received the videos as a result of a wrong delivery. The recipient had opened them, but didn’t view them. The Court held that the unauthorized viewing of the film’s content constituted an unreasonable invasion into the owner’s constitutionally protected interest in privacy
2. Reopening Permitted
a. United States v. Jacobsen- FedEx supervisor asked an office manager to examine a package that had been torn open by a forklift. Found a weird tube inside; cut it open. Contained several ziplock bags containing a powdery white substance and contacted the DEA. DEA agents arrived and reopened the tube and the ziplock bags and tested the substance. Court upheld the agent’s actions. FedEx employees
actions were not covered by the 4th Amendment and Walker required an analysis of the extent to which the government exceeded the bounds of the private search. 3. Controlled Deliveries
a. Illinois v. Andreas- government agents conducted a customs search of a wooden crate that was being shipped to a US address. They found drugs hidden inside. They resealed the crate and shipped it to the address, and searched the defendant after he brought it into his home and left the home several minutes later. “The simple act of resealing the container to enable police to make a controlled delivery does not operate to revive or restore the lawfully invaded privacy rights.” The reopening of the crate was not a search.
B.
WARRANTS
“Searches conducted outside the judicial process, without prior approval by a judge or magistrate are per se unreasonable under the 4th Amendment, subject only to a few specifically established and well-delineated exceptions.”- Katz v. United States JOHNSON V. UNITED STATES (p. 80)
FACTS: Police entered Johnson’s hotel room after receiving information that the room smelled of opium. Police contacted the federal agents and they entered the room after Johnson gave them permission. Police found opium and a smoking apparatus that was warm.
ISSUE: Did the officer violate the 4th Amendment by arresting petitioner and searching her living quarters without a warrant?
REASONING: The warrant requirement protects citizens by requiring that inferences are drawn by a neutral judge/magistrate instead of a police officer, who may be engaged in the “often competitive enterprise of ferreting out a crime.” The officers in this case had no legitimate reason why they could not obtain a warrant; the suspects did not attempt to flee, the search was not of a moveable vehicle, and there was no indication that evidence was going to be destroyed.
RULE: When a persons’ right to privacy must be reasonably yielded to a right to search, this decision must be made by a judge or magistrate, NOT the police officer.
Hypo
A robbery was reported earlier in that day. The suspect was wearing a very ridiculous, uncommon outfit. Police officer responds to a noise complaint in Jim’s apartment. Jim answers the door wearing an outfit that matches the description of the robbery suspect’s outfit. He is also looking nervously at his closet.
Two issues:
o How do we know we’ll find evidence in the closet? It could be a coincidence that someone else has a crazy outfit. Maybe it’s wrong to assume it’s the same person. o Should the officer obtain a warrant before the search? Maybe this situation ought to
be judged by a neutral magistrate. The magistrate can determine if there’s probable cause and will not be controlled by the passion that an officer may be dealing with in this situation.
Demonstrating Probable Cause
Two possible probable cause tests: Aguilar/Spinelli or Illinois v. Gates. Some states still use the Aguilar Spinelli test (NY). But the Supreme Court held that the two-pronged test would no longer control the determination of probable cause when the police obtain information from paid, professional, or anonymous informants. The Court rejected the two-prong test and adopted a “totality of the circumstances” approach in Gates.
SPINELLI V. UNITED STATES (p. 90)
FACTS: Spinelli was convicted of traveling to St. Louis from Illinois with the intent of conducting illegal gambling activities. Police obtained a warrant based on an affidavit stating that Spinelli frequently traveled between the two cities, he had an apartment with two telephones, and that he was known to the affiant and the Feds as a bookmaker and famvler and that the FBI had received information from an information that Spinelli was accepting wagers.
ISSUE: Did the affidavit provide sufficient probable cause to allow a search warrant to be granted by a magistrate?
HOLDING: No.
REASONING: The affidavit fell short of the standard set forth in Aguilar and Draper.
Aguilar- the magistrate must be able to independently judge the validity of the informant’s conclusion; the affiant-officers must support their claim that the information received from the informant is credible.
Draper- the informant had told officers that Draper would arrive at a train station carrying heroin and would be wearing specific clothes; specific assertions were made, and that shows the
state how the informants statements were supported. The facts listed in the affidavit itself do not by themselves indicate any criminal activity.
RULE: Probable cause is to be determined by a neutral and detached magistrate who must analyze the reliability and basis of knowledge of the informant. If both prongs are satisfied, there is
probable cause. If not, the tip can be considered by the magistrate only if there is considerable corroboration.
The Aguilar/Spinelli Two- Prong Test (NY uses this!)
1. Reliability/veracity- can we believe the informant? Is the informant himself credible? can be established by information that is believable in the circumstances
informant’s previous good track record of providing credible information
motivation for accuracy (they’re getting a plea bargain, so that will make them more likely to be accurate)
is the information generally believable?
2. Basis of knowledge- does the informant know what he’s talking about? (Credible information)
some people may truly believe something, but that doesn’t mean it’s right! Ex: Mother Theresa may think that everyone who wears baggy jeans is in a gang; the fact that she honestly believes this doesn’t mean that she has a good basis of knowledge
THE RULE: If both prongs are satisfied, the information can be used to establish probable cause. If not the tip can be considered by a neutral magistrate only if there is sufficient corroboration. ILLINOIS V. GATES (p. 97)
FACTS: A confidential informant wrote a letter to the police with information that a couple in the
neighborhood was engaging in the sale of marijuana. The informant provided specific information as to how the couple obtained the marijuana, and the informant stated an estimated date that the couple would be traveling to obtain drugs again. Mader investigated and found some information that was consistent with what the informant said. Mader was in contact with the DEA, and signed an affidavit that he submitted to a judge. The judge issued the warrant.
ISSUE: Was the anonymous letter along with the officer’s affidavit sufficient to establish probable cause?
HOLDING: Yes.
REASONING: Even standing alone, the facts obtained through the investigation of Mader at least suggested that the Gates’ were engaged in illegal drug activity. Additionally, the letter corroborated Mader’s
investigation.
RULE: In determining whether a warrant was issued based on sufficient probable cause, the
magistrate should analyze the information using a “totality of the circumstances” analysis; the task of the magistrate is simply to make a common sense decision whether given all of the information in front of him, there is a fair probability that evidence of a crime will be found.
Under Aguilar/Spinelli if the magistrate thought that one prong failed, no probable cause. Under Gates, the government has room to argue.
Under Gates, all corroboration gets thrown into the mix; innocent facts just have less weight.
Under Aguilar/Spinelli, innocent facts (such as defendant having 2 telephone lines) have no weight and are usually not even considered.
The two-prong test still has some relevance when the police rely in whole or in part of an informant’s tip!
Maryland v. Pringle (p. 121)
FACTS: Police officer stopped a car for speeding. Three passengers were in the car. As the driver reached for his registration, police officer noticed a rubber band of money in the glove
compartment. Police officer went back to the patrol car and searched records, finding no violations for Partlow (the driver). Officer asked Partlow if the car contained any drugs or weapons. Partlow said no and consented to a search of the vehicle. Officers found a bundle of money and 5 bags of cocaine. All 3 passengers were arrested. Pringle waived his Miranda rights and confessed. Trial court denied Pringle’s motion to suppress evidence as the fruit of an illegal arrest. Court of appeals reversed, finding that there was no specific information to indicate that the drugs belonged to Pringle and not the other passengers.
ISSUE: Did the police officers have probable cause to arrest Pringle for the possession of drugs? HOLDING: Yes.
REASONING: Based on the information, it was reasonable that any one or all three of the
occupants had knowledge of and exercised dominion over the cocaine. Therefore, probable cause existed to arrest any one of them. The placement of the drugs indicated that any of them might be exercising dominion. The Court reasoned that a “reasonable officer could have concluded that there was probable cause to believe that Pringle had possessed cocaine.”
RULE: When an officer can reasonably conclude that a defendant may be guilty, the officer has probable cause to arrest the defendant even if it is possible that other persons may have been the guilty party.
NOTE: In order for a passenger to challenge the search, they must establish an expectation of privacy in the car.
Hypo
What if there was $5 in the glove compartment, instead of several hundred, and only one bag of cocaine? This wouldn’t seem as suspicious and the officers would need more information to establish probable cause as to all three passengers.
Every change in facts (such as $5 or one bag) gives Pringle’s attorney questions to raise to show that Pringle wasn’t involved in a conspiracy to sell drugs.
Devenpeck v. Alford (p. 124)
FACTS: Police officer was driving and saw two cars pulled over; one car had wig wag lights turned on and was assisting a disabled car. As the police officer approached, the man went to his car and drove away. Police officer asked the people there if the man was a police officer; they told him that he appeared to be. When the officer approached the mans car after pulling him over, he saw that the man had intercepted the
local police departments radio and was listening to it. He was also recording the conversation. He was arrested and charged with recording in violation of an Act, even though a recent Court of Appeals decision said it was lawful for him to record a conversation with police officers. Defendant argued that his arrest was unlawful because the offense he was arrested for was not “closely related” to the offense that the officer had probable cause for.
There was objective probable cause, but the police officer arrested defendant on a crime which he had subjective probable cause for that was not closely related to the crime that had objective probable cause.
ISSUE: Was the arrest lawful when police had probable cause for an arrest for one crime and the actual arrest was made for another crime?
HOLDING: Yes.
REASONING: A police officer’s subjective reason for making an arrest need not be the criminal offense as to which the known facts provide probable cause. The “closely related” rule is inconsistent with this precedent. It is improper for a rule to turn on the motivation of a police officer.
RULE: An arrest is lawful if the police officer had probable cause for one crime but then arrested the defendant for another crime.
Arrested for X, but no probable cause for X. How is this lawful?
The police had probable cause for something else, so even though the arrest was for something else, it’s still lawful.
Even if a police officer doesn’t realize they have probable cause, the arrest is lawful as long as there is probable cause based on an objective standard.
Probable Cause, Specificity, and Reasonableness What can be seized?
o Fruits of the crime (the stolen items, drugs, etc.) o instrumentalities
o contraband o evidence Warden v. Hayden (p. 129)
FACTS: Maryland Court convicted the defendant of armed robbery. Items of his clothing matching the description of the robber were seized and admitted into evidence. Court of Appeals reversed his conviction, stating that the clothing was improperly seized because the items had only
“evidentiary value” and only fruits of the crime can be properly seized.
ISSUE: Was the Court of Appeals correct in holding that the seizure and introduction into evidence of the clothing violated the 4th Amendment because the clothing was only “mere evidence?” HOLDING: No. The Court of Appeals was incorrect.
REASONING: The 4th Amendment does not make a distinction between “mere evidence” and the “fruits of the crime.” The 4th Amendment only wants to protect privacy again illegal searches and seizures; privacy is not disturbed any more by a search/seizure for mere evidence than it is by a search/seizure for fruits of the crime.
Andresen v. Maryland (p. 141)
FACTS: A bi-county investigation led police to an investigation of real estate settlement activities and Andresen was suspected of fraud with regard to the sale and conveyance of lot 13T. A warrant was obtained for specified “documents pertaining to the sale and conveyance of lot 13T.” The final clause was vague and said that search and seizure of “other fruits, and instrumentalities and evidence of crime at this time unknown” was permitted. Petitioner contends that his 4th Amend right was violated because the warrant’s descriptive terms were so broad that they constituted a general warrant.
ISSUE: Was the warrant specific enough to not be considered a general warrant? HOLDING: Yes.
REASONING: Andresen misinterpreted the warrant. The Court found that the phrase “other fruits . . unknown” meant evidence to the crime at hand yet unknown, not to other crimes unknown. That would be too broad. The Court noted that the search of papers and audio tapes are tricky because papers need to be read in order to determine if they are the thing sought, and tapes need to be listened to. The Court cautioned officers to conduct searches in a manner that minimizes unwarranted intrusions upon privacy.
RULE: Warrants that seek documents must be specific so they don’t infringe upon 4th Amendment rights to reasonable searches.
Zurcher v. Stanford Daily
RULE: The critical element is reasonable cause to believe that the specific “things” to be searched for an seized are located on the property to which entry is sought.
If not, police would be free to search the homes of anyone associated with the suspect! The Place to be Searched
A. Third party searches are permitted (Zurcher v. Stanford Daily)
B. The place to be searched must be described with particularity (usually an address or a specific description)
C. Maryland v. Garrison- the Court upheld a warrant authorizing the search of the “third floor apartment” even though there ended up being two apartments on the third floor. A police officer had obtained information that seemed to indicate that there was only one
apartment on the third floor D. The Wrong Address
a. Lyons v. Robinson- warrant authorized the search of 325 Adkinson street; Robinson’s residence was actually located at 325 Short Street, on the corner of Short and Adkinson. Court said the warrant was sufficiently particular because it made it unlikely under the circumstances that another premises might be mistakenly searched.
Description of the Persons or things to be Seized
May depend on the nature of the evidence. Certain things need to be described very carefully.
What is needed it “sufficient particularity to guide the execution of the warrant” so police know what to look for.
Executing the Warrant
Statutes throughout the country require that officers require that officers executing a warrant knock and announce their presence before attempting to enter a dwelling. 18 U.S.C.A 3109- “The officer may break open any outer or inner door or window of a
house, or any part of a house, or anything therein, to execute a search warrant if, after notice of his authority and purpose, he is refused admittance when necessary to liberate himself or a person aiding him in the execution of the warrant.”
o Can break down doors if refused admittance!
The general rule: An officer can break open premises if he has announced his authority and purpose and is refused entry. “You can’t come in” is grounds for entering. Refusal can also be implied through a persons’ failure to respond within a reasonable amount of time. Generally, citizens are allowed more time to answer at night.
Wilson v. Arkansas (p. 150)
RULE: In order to be reasonable, the execution of a search warrant must be preceded by a knock and announce.
REASONING: There are three reasons for this rule
1. Provides a little opportunity to protect decency (clothing, showers, etc.) 2. Protects against the potential violence in a chaotic situation (There have been
situations where police break into the wrong house and the homeowner shoots the police officer because they think they’re being robbed)
3. Prevents needless destruction of property. We don’t want doors/windows being broken if they don’t need to be!
“No-Knock” Entry: Exigency Exception to the Knock and Announce Requirement Richards v. Wisconsin (p. 152)
FACTS: Police obtained a warrant to search Richards’ hotel room for drugs and paraphernalia. Police requested a “no-knock” warrant, but the magistrate denied this request and issued a regular search warrant. The police went to the hotel room and knocked on the door announcing himself as a maintenance man. Richards cracked open the door, leaving the chain hooked. He shut the door when he saw an officer in uniform. The officers then started knocking the door down while
shouting that they were police officers. When they broke in, they saw Richards trying to escape out of the window. They found large amounts of cash and drugs.
ISSUES: Can a police officer break down a door if there are exigent circumstances? HOLDING: Yes.
RULE: In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
1. to prevent the destruction of evidence. Drug dealers usually leave drugs close to sinks/bathrooms so they can destroy evidence quickly.
2. to prevent the suspect from escaping 3. safety
“Tricking” the Homeowner
Courts have held that if the officer can trick the homeowner into opening the door, there is no violation of the knock and announce requirement because there is no “breaking.”
United States v. Alejandro- held that officers did not violate the knock and announce requirement by posing as utility men and entering when defendant opened the door because there was no “breaking.”
No-Knock Warrants
If officers have reason to believe that exigent circumstances will exist, they can tell the magistrate and can get a warrant permitting them to enter the dwelling without knocking and announcing.
Ex: Can demonstrate that the defendant is known to be dangerous, known to have guns, etc.
Forced Entry Rule
Forced entry after a knock and announce is permitted in the following two situations: 1. Exigent Circumstances
2. Refusal of Entry (actual of inferred)
a. United States v. Banks- defendant was in the shower when officers knocked and announced. They forced entry after 15-20 seconds of not hearing a response. Courts look at the officers perspective in determining whether the forced entry was
reasonable. In 15-20 seconds, the defendant could be in the shower, or he could be escaping, destroying evidence, hurting someone, etc.
What happens when officers violate the knock and announce requirement? The evidence is not excluded!
the purpose of the knock and announce rule is to protect the reasonableness of the search, not to allow defendants a chance to hide things or escape. Therefore, evidence is not excluded if officers violate the rule.
Anticipatory Warrants
A judge/magistrate can issue a warrant that is only valid when a stated event occurs.
The argument against anticipatory warrants is that the police decide when the event occurs, not the magistrate.
“Sneak and Peak” Warrants
Allow police officers to search and seize without telling the defendant that they were there and without providing them with a copy of the warrant and a list of the evidence they obtained. Congress said that this was permissible.
Searches usually occur at the end of an investigation when the defendant is about to be arrested.
Post 9/11, police wanted to search possible terrorists earlier on to catch criminal activity sooner.
Problem with sneak and peak warrants- if the home is searched without knowledge, the defendant doesn’t have the opportunity to challenge whether the magistrate was right in issuing the warrant. There’s no check on the NDM’s decision.
Particularity of the Warrant- Scope
Size matters! Police can look anywhere that the items sought may be found. If it’s large enough to contain the evidence, it can be searched.
o If they’re looking for a rifle, they can’t search a small container.
o However, if the warrant stated that they were searching for a riffle and
contraband/instrumentalities, they can search a small container because bullets may be found there.
o Warrants should be very carefully drafted to include these things!
o Including “blood, hair, and fibers” basically allows a search of the whole premises because those can be found anywhere!
Destruction of Evidence and Excessiveness
Buckley v. Beaulieu- officers acted unreasonably in tearing up the walls in defendant’s home to search for liquor. They could have searched for liquor concealed in the walls by using “some slender probe with comparatively little injury.”
United States v. Weinbender- officers searched wall of defendant’s home to search for clothes that would have connected defendant to a crime. The Court held that this was reasonable because the officers had received information that the defendant used weird hiding places, the officers
observed a small piece of drywall that was unfinished and it was a small piece covering a storage space.
Look at the facts of the case to see if it’s excessive! Use of Distraction and Intimidation Devices
United States v. Myers- Court upheld officer’s use of a flash bang device. Showed concern for the use of the device because children were sleeping in the home, but held that it was reasonable due to Myers known criminal activity.
United States v. Jones- use of a flash-bang device does not result in the exclusion of the evidence obtained.
Unnecessarily Intrusive Searches
The manner in which a warrant is executed is always subject to judicial review to ensure that it does not traverse the general 4th Amendment proscription against unreasonableness.
Hummel-Jones v. Stope- officers questioned a woman in a shelter while she was nursing her newborn baby. Court held that the search was so intrusive as to be unreasonable.
Coolidge v. New Hampshire- Supreme Court stressed the importance of neutral and detached magistrates. Stated that the magistrate must not be associated with the police department.
“Rubber stamps”- a magistrate cannot be neutral and detached if he has a reputation for issuing pretty much every warrant that he is faced with.
Magistrates do not need any legal training.
C.
WARRANTLESS SEIZURES, ARRESTS, AND SEARCHES
The Court has held that a search or seizure is presumptively unreasonable in the absence of warrant based upon probable cause. However, the Court has found that the presumption of unreasonableness can be overcome in a variety of circumstances.
What quantity of evidence must police show in order to arrest a suspect?
o In order to arrest a person, a police officer must always have probable cause to believe that a crime has been committed and that the suspect committed the crime. This is always needed for an arrest.
o What changes is the warrant requirement. Generally, a warrant is needed for an arrest to be reasonable. There are several exceptions.
The issue of whether a warrant was needed arises when a defendant tries to suppress evidence by stating that his arrest was unreasonable.
If police want defendant to be arrested anywhere other than his home or the public, they also need to obtain a search warrant! What do you think would apply if the defendant was at work? Would a search/arrest warrant be needed?
Arrests in Public UNITED STATES V. WATSON (p. 171)
FACTS: An informant, Khoury, gave a tip to a postal inspector that Watson was in possession of a stolen credit card and had asked Khoury to use the card to their advantage. Khoury had provided the inspector with reliable information on 10 other occasions. Khoury arranged to meet Watson at a restaurant, and was to signal to the inspector if Watson had any stolen credit cards with him. Officers searched Watson after receiving the signal and found no cards on him; they did find two stolen credit cards hidden in his car. Watson was arrested. At trial, Watson moved to suppress the cards, claiming that his arrest was illegal for lack of a warrant. Trial Court said it was proper to arrest him without a warrant and convicted him; Court of Appeals said it was an error to arrest Watson without a warrant and reversed the
conviction.
ISSUE: Does a public warrantless arrest violate the 4th Amendment? HOLDING: No.
REASONING: There is nothing in the court’s prior cases indicating that a warrant is required to make an arrest for a felony under the 4th Amendment. “The usual rule is that a police officer may arrest without a warrant one believed by the officer upon reasonable cause to have been guilty of a felony.” Carroll v. United States, 267 U.S. 132, 156 (1925). Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.
RULE: A warrantless arrest made in a public place does not violate the 4th Amendment. Hypo
Police officer has probable cause to believe that defendant has committed a felony. He sees him walking down Hempstead Turnpike. He arrests him without an arrest warrant. Does this arrest violate the 4th Amendment?
No. This arrest is reasonable under the 4th Amendment. Many states and the federal government follow this rule.
However, the officer may still want to obtain a warrant to be cautious.
o Ensures that future evidence won’t be lost. If it is later found that there was no probable cause, the evidence will be lost. But if a magistrate determined that there was probable cause and issued a warrant, the defendant can’t raise it as an issue.
Protections Against Erroneous Warrantless Arrests COUNTY OF RIVERSIDE V. MCLAUGHLIN (p. 179)
FACTS: This is a class action challenging the manner in which the County provides probable cause determinations to those arrested without a warrant. The policy states that the determinations must be without unnecessary delay and always within two days of an arrest (not including holidays, so people can actually be there for a long time). The Gerstein case said that probable cause must be given “promptly,” but the court offered no guidance as to what “prompt” meant.
ISSUE: How soon must a probable cause determination be given in order to be considered “prompt.”
HOLDING: A probable cause determination is prompt if it is given within 48 hours of the arrest. REASONING: The Court said that they must balance the interest of protecting the public from possibly dangerous arrestees and protecting the interest of unnecessarily holding an innocent suspect. They found that two days was reasonable enough because it allows enough time for the police to deal with delays that happen in the ordinary course of police work.
RULE: A probable cause determination is prompt if given within two days of the arrest without a warrant; however, it can still be found reasonable if the determination was unnecessarily delayed even within 48 hours: “that delay may be unreasonable if it is motivated by a desire to uncover additional evidence to support the arrest or to use the suspect’s presence solely to investigate the suspect’s involvement in other crimes.” United States v. Davis, 174 F.3d 941 (8th Cir.1999)
(defendants warrantless was held unreasonable even though defendant was only held for two hours).
Remedy for a McLaughlin Violation
Courts have found that evidence can be excluded only if it was obtained as a result of an unreasonable detention. Therefore, exclusion is not required if a magistrate would have found probable cause for the detention even if the hearing had been promptly conducted.
Arrests in the Home PAYTON V. NEW YORK (p. 184)
FACTS: Police investigated Payton for two days and established enough probable cause to believe that Payton committed a murder. They went to his house to arrest him; they did not have an arrest warrant. They knocked on the door but no one answered; they entered because the house had
lights on and music coming from inside, so they assumed he was home. When they entered, they discovered that he wasn’t home but a gun was in plain view.
ISSUE: Is an arrest warrant required for an arrest effectuated in the defendant’s home? HOLDING: Yes.
REASONING: The home is different from a public place. People have a greater expectation of privacy in their home, and the law should recognize that the home is a sanctuary.
RULE: An arrest warrant is required if police wish to arrest a defendant in his home. Hypo
Officers wish to arrest a homeless person. At the time of the arrest, he is in the area that he calls “home.” Is a warrant needed?
Some Courts have held that the arrest won’t violate Payton if there is no warrant because it is not a “home.”
Other Courts have been more sympathetic to the privacy interests of homeless persons and have held that an arrest warrant is needed to arrest a homeless person whenever they are in the area that they call “home,” as long as he is not trespassing.
Hypo
Police wish to arrest a person who is staying in a hotel. Is an arrest warrant needed to arrest the defendant in their hotel room?
Yes. The Payton rule applies to hotels/motels during the rental period. If the person stays in the hotel past the rental period and is not paying for it, no warrant is needed.
Arrests in the Home of a Third Party STEAGALD v. UNITED STATES (p. 189)
FACTS: Police obtained an arrest warrant for Ricky Lyons. They received information that Lyons would be staying at Steagald’s house for the next 24 hours. They went to Steagald’s home and searched for Lyons and didn’t find him, but found drugs belonging to Steagald. Steagald alleged that the drugs should be suppressed because the officers did not have a search warrant to search his home.
ISSUE: If the police have an arrest warrant for a person, and they believe that the person is staying at the home of a third person, is a search warrant needed to search the home of the third person? HOLDING: Yes.
REASONING: A magistrate should be the one to determine that there is probable cause to believe the suspect is at the third party’s home.
RULE: A search warrant must be obtained to look for a suspect in the home of a third party, absent consent or exigent circumstances. Police need to demonstrate a fair probability that the arrestee is at the third party’s home.
NOTE: If the police had a search warrant for Steagald’s home, the evidence implicating Steagald doesn’t need to be excluded because they were there lawfully.
In Steagald, the court suppressed the evidence seized against Steagald because his 4th Amendment rights were violated as a result of the search. Would Lyons have standing to complain about the search?
No. The Courts are concerned with the privacy interests of the third-party homeowner, not of the visiting arrestee.
The Rights of an Overnight Guests
Minnesota v. Olson- an arrest warrant is required under Payton to arrest a person who was an overnight guest in the home of a third party. Justice White stated that a person’s status as an overnight guest is enough to show a reasonable expectation of privacy in that home.
Would a search warrant be needed too? Temporary Visitors
Minnesota v. Carter- Carter and Johns objected to a warrantless search of an apartment. They were there for a few hours for the purpose of cutting up cocaine. The Court stated that they had no reasonable expectation of privacy in the apartment and could not object to the warrantless search. This case is also discussed in the materials on standing.
Exceptions to the Warrant Requirement in a Nutshell
1. No arrest warrant needed for an arrest made in a public place. United States v. Watson
a. Hypo: Police officer has probable cause to believe that suspect has committed a robbery. He can approach the suspect on Hempstead Turnpike and arrest him without a warrant.
b. This rule comes from the common law. It is followed by many states and federal law. c. Police officer may still want to obtain an arrest warrant to make an arrest in public.
i. can ensure that future evidence won’t be lost. Ex: If it is later determined that there was no probable cause for the arrest, the evidence will be lost. If an arrest warrant is issued by a magistrate, the defendant can’t raise it as an issue.
ii. Sometimes defendants think that an arrest isn’t a big deal; having a warrant makes it “stick” more
d. Collective knowledge- police officer’s can rely on information from police officers in other jurisdictions to establish probable cause. Whirley v. Warden
e. Watson was silent on what happens when a misdemeanor happens outside of the officer’s view. It doesn’t suggest that the 4th Amendment would be violated if the suspect was arrested in public based on information not directly witnessed by the arresting
2. An arrest warrant is needed if an arrest will be made in the suspect’s home, even if there is probable cause to arrest. Payton v. New York
a. The Court drew a line between a public place and a home. We want to protect the sacred notion of a home.
b. It’s the showing of probable cause that makes a person arrestable. Once there is probable cause, a person can be arrested anywhere; the seizure is lawful. It becomes a matter of how they were seized.
c. If there is probable cause to believe someone committed a crime, they are
“seizable,” just like the fruits of the crime, instrumentalities, etc. It’s just a question of where you go to get them.
d. There are two requirements of the Payton rule: i. An arrest warrant
ii. Reason to believe the person is home
e. No search warrant was needed to search for Payton in his home because there was reasonable cause to believe that they were home. They have to show that they think he’s home, but not to the magistrate. They just have to show a “reason to believe.”
f. If defendant was home, officer needs an arrest warrant, not a search warrant to search for him (he only needs reason to believe that he’s there.
g. An arrest warrant only allows police to search the suspect’s home to find the defendant; it does not permit the police to search for the defendant anywhere he might be found (friends and families houses, etc.) Police can’t barge in to a suspects friends home with an arrest warrant for the suspect.
3. Police need probable cause to arrest AND a SEARCH WARRANT if they arrest defendant in a third party’s home. Steagald v. United States
a. Need to show a fair probability that defendant is at the third party’s home. b. The purpose is to protect the third party’s privacy in his own home, not the
defendants!
NOTE: There is no constitutional requirement for an arrest warrant; officers do not need to obtain an arrest warrant even if they have sufficient notice.
Stop and Frisks TERRY V. OHIO (p. 193)
FACTS: Officer McFadden spotted two men, Terry and Chilton, standing on a street corner talking. One of them walked down the street and stopped in front of a store and looked into the window. He came back and spoke with the other. Then the other did the same thing. They repeated this pattern of one of them walking to the store and then returning to talk to the other several times each. At one point they starting speaking to another man, Katz. Officer McFadden approached them and identified himself, and began to pat the outside of Terry’s coat. After feeling a gun, he pulled the three men inside. He patted the outside of Terry and Chilton’s coats before searching the inside and finding guns; Katz was not carrying a concealed weapon, so McFadden did not feel the inside of his coat.
ISSUES: 1. Did a “search” and a “seizure” occur in this case? 2. Is it unreasonable for a police officer to seize a person and subject him to a limited
search for weapons when there is no probable cause for arrest?
HOLDING: 1. Yes. A search and a seizure occurred. The Court didn’t follow the suggestion that the terms “stop” and “frisk” are words describing police conduct that falls out of the 4th Amendment. “ It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.
2. It is not unreasonable
RULE: When a police officer has reasonable suspicion to believe that a suspect is dangerous, he may conduct a limited search (“frisk”) of the person in order to discover any weapons, even if there
is no probable cause for arrest at the time. It’s a reasonable suspicion requirement, less than probable cause! Reasonableness is determined based on an OBJECTIVE standard.
REMEMBER: A “terry” stop and frisk only permits officers to look for weapons; an officer cannot do a stop and frisk if he is looking for drugs!
Adams v. Williams (p. 202)
FACTS: Officer was approached by an informant who told him that the defendant was carrying a gun at his waist and narcotics; defendant only lowered the window when the officer told him to step out of the car. Officer felt defendants waist and felt a gun; defendant was arrested for unlawful possession of a fun and for narcotics found during a subsequent search of Williams and the car.
HOLDING: A tip from a reliable informant may give a police officer reasonable suspicion to frisk the suspect. This case expanded the Terry tule to allow that an officer’s suspicion does not need to be based on his own personal observation.
Bright Line Rule Under Terry
Pennsylvania v. Mimms (p. 204)-police stopped Mimms for driving with an expired license. Once he was out of the car, they saw a bulge under his jacket and frisked him. The issue was whether the officers were justified in ordering Mimms out of the car.
HOLDING: Officers in the course of a legal stop of a car have an automatic right under Terry to order the driver out of the vehicle. Traffic violations still pose a risk to the officer.
Maryland v. Wilson (p. 207)- Officer pulled over a car for speeding and ordered the driver and the passengers out. Bag of cocaine fell from one of the passengers as he stepped out of the car. Passenger claims that the drugs should be suppressed because the officer didn’t have a right to order him out of the car.
HOLDING: The automatic rule authorizing officers to order the driver out of the car after a legal stop also applies to passengers. Officers have an automatic right to order passengers out of a car. Even though the stop of the car didn’t have anything to do with the passenger’s conduct, the intrusion is minimal.
Protective Frisks of Passengers
Arizona v. Johnson (p. 208)- Officers who conduct routine traffic stops may perform a patdown of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous. Unlike ordering them out of the car, this isn’t an automatic right; the officer needs reasonable suspicion that the person is armed and dangerous before he can pat them down!
New York v. Class (p. 208)- an officer is allowed to reach into the defendant’s car to move an obstruction that is blocking the VIN number. Police officers did not have to ask Class to re-enter his car to move the papers.
Michigan v. Summers (p. 209)- It is reasonable for police officers to require the occupant of the premises to remain present while a search of their premises is being executed. they can be ordered to stay even if they were leaving the premises at the time the officers arrived.
Reasoning: This prevents the potential destruction of evidence. An occupant may try to destroy some evidence in the process if leaving the home. Also, if occupants aren’t required to stay, they may try to escape and hide.
Muehler v. Mena (p. 209)- Officers can handcuff and detain a person during the warranted search of their home. It was also permissible for officers to question the detainee on suspected gang involvement during the search. The Court has held several times that “mere questioning does not constitute a search.” Since the detention was not prolonged by the questioning, there was no additional seizure within the meaning of the 4th Amendment.
When Does a Seizure Occur: The Line Between “Stop” and “Encounter” United States v. Mendenhall (p. 212)
FACTS: DEA agents observed Mendenhall as she arrived on a slight suspected her of being a drug courier. They walked with her on the public concourse and identified themselves as DEA agents. They asked for her license and plane ticket; the name on the plane tickets was not hers. They asked her to follow them for more questioning and she complied. During questioning, she was searched and drugs were found. Court held the Mendenhall was not seized.
RULE: A person has been seized within the meaning of the 4th Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
Florida v. Royer (p. 213)
FACTS: Officers spotted Royer at an airport and thought he looked like a possible drug courier. Detectives approached him and identified themselves as being with the sheriff’s office and asked if Royer had a moment to speak with them; Royer said yes. Royer produced his airline ticket and driver’s license upon request without speaking. The names were different. The officers held on to them and told Royer that they were narcotics detectives. Detectives asked Royer to accompany them to a room for questioning; he complied but didn’t answer. One detective retrieved the suitcases. Royer provided a key and the officer proceeded to open it without again asking if it was ok. Drugs were found. The second suitcase had a lock and Royer said he didn’t know the
combination. When the detectives asked if it was ok if they bust it open, Royer said “go ahead.” They found more drugs.
HOLDING: Royer was seized when the officers took his plane ticket and license and walked away. Whether a person has been seized depends upon the circumstances; the facts of this case are different from Mendenhall because the officers here took Royer’s identification; he couldn’t go anywhere.
Factory Sweeps
INS v. Delgado (p. 216)- INS officers did not seize workers when they conducted factory surveys in search of illegal aliens. During the sweep, employees continued to work and were free to move around the factory.
Street Encounters
United States v. Cardoza (p. 217)- officers approached Cardoza in a car facing the wrong way on a one way street and asked h im what he was doing out at that time of night. Cardoza was talking with his hands and gesturing and revealed a bullet. Officers then patted him down and found a gun on him.
HOLDING: Cardoza was not seized within the meaning of the 4th Amendment. The test for Terry stop and frisk is not whether a reasonable person would feel free to leave, but whether the police officer was acting coercively.
Bus Sweeps
UNITED STATES V. DRAYTON (p. 220)
FACTS: Drayton and Brown were on a bus when 3 officers boarded at a gas stop. Two officers went down the isle asking people to identify their bags and one stayed at the bus’ entrance. Officers did not tell any of the people that they did not have to comply with questioning. When they reached defendants, they asked to check their bags and defendants said yes, then the officer asked to check their person, which both defendants said yes. One of the defendants was already under arrest at the time the second defendant was searched. Both defendants were found to be carrying cocaine. ISSUE: Must an officer inform people that he is about to question that they do not need to comply with questioning?
HOLDING: No.
REASONING: The Court looked at the circumstances surrounding the questioning and found that the officers gave the passengers no reason to believe that they were required to answer the officers questions. The officer at the front was there to ensure that the other officers were safe. Officer Lang identified himself and made sure not to block the aisle for the defendants. He spoke with them in an average volume voice and didn’t even use an authoritative tone.
RULE: An officer does not need to tell a person that they do not have to comply with questioning. State of Mind Required for a Stop
Brower v. County of Inyo (p. 227)- seizure only occurs when there is a governmental termination of freedom of movement through means intentionally applied.
Medeiros v. O’Connor (p. 227)- Gunman took over a schoolbus and took a student as hostage. Police officer fired and hit the student on accident. Held that the student was not seized; the intent to seize needs to be specific, not general.
The Suspect Who Does not Submit
California v. Hodari D. (p. 228)- Officers approached a group of youths, who fled when the saw the officers. Hodari threw a small rock as an officer was chasing him. Hodari claimed that the pursuit itself was a seizure.
Held: Court held that the pursuit was not a seizure. The public should be encouraged to comply with police orders, and allowing people who run from police to say they are seized affords them too much protection.
Reasonable Suspicion Two-step analysis to determine if there was reasonable suspicion:
1. Investigate the source of information upon which the reasonable suspicion is based 2. Evaluate whether that information is sufficiently suspicion to justify a stop
A. The Source of Information 1. Anonymous Tips
Alabama v. White (p. 232)- police received an anonymous tip that White would be leaving a particular apartment in a station wagon with a right taillight broken and that she would drive to a nearby motel carrying a briefcase of cocaine. Officers observed and saw that everything the informant said was right, except for the fact that White wasn’t carrying a suitcase. The case was already in the car; she consented to a search of it when she was stopped.
Held: There was reasonable suspicion because their was predictive information beyond “leaving her house in a station wagon.” Once she started driving towards the motel, there was reasonable suspicion even though this fact on its own is innocent.
Florida v. J.L. (p. 234)- anonymous information called the police station and said that there was a young black male in a plaid shirt at a bus station carrying a weapon. Officers went to the scene and saw J.L. in a plaid shirt. They did not see a firearm, and J.L. did not act suspiciously or make any threatening movements. Officers approached him and told him to put his hands up, frisked him and found a gun. J.L. claims that the officers did not have reasonable suspicion for the stop.
Held: There was no reasonable suspicion for the stop. There was no predictive activity.
Rule: An anonymous tip lacking indicia of reliability does not justify a stop and frisk whenever and however it alleges he illegal possession of a firearm.
Note: The Court implied that if the anonymous tip was about a major threat to public safety. (If the AI said that a guy in a plaid shirt was walking into a building with a bomb). Sitting with a gun
doesn’t necessarily mean that the person is going to use it, and doesn’t pose that high of a risk. Drunk driving- if an officer receives a tip that a car is driving erratically, and arrives at the
scene and the car is already stopped, he still ahs reasonable suspicion to stop him for drunk driving. Erratic and possibly drunk driving poses an imminent threat to public safety.
Domestic violence- anonymous informant’s tips about domestic violence and related emergencies have been held to be sufficient for a stop even without sufficient corroboration through predictive activity
UNITED STATES V. ARVIZU (p. 243)
FACTS: Arvizu was stopped by a border patrol agent. His minivan drove past an officer and slowed down. Officer thought it was weird that Arvizu drove right by without glancing at him, since most people who passed border agents waved. He noticed that the children’s knees seemed to be very high up, as if their feet were resting on something.
ISSUE: Was there sufficient ‘reasonable suspicion’ to believe that Arvizu was engaged in illegal activity to justify the stop of the minivan?
HOLDING: Yes.
RULE: Reasonable suspicion can be found through innocent facts that are combined together. Relevance of Race
City of St. Paul v. Uber (p. 254)- officer observed Uber’s car at 2:15 am, and again half an hour later. Discovered that the car was registered to a city 20 miles from where they were. Stopped him because they were in an area known for prostitution.
Held: Simply being in a public area known for prostitution does not give reasonable suspicion to stop a person in that area. Additionally, the fact that it was a predominately white area and the defendant was black was not sufficient to raise suspicion.
Use of Profiles
Police use profiles to determine whether the conduct of citizens is sufficiently suspicious to justify a stop.
Drug couriers- police frequently look for these factors in looking to stop a person Arrival or departure from an identified source city
Carrying little or no luggage
Unusual itinerary, such as a rapid turnaround time after a very lengthy airplane tripe Use of an alias
Carrying an usually large amount of currency
Purchasing airline tickets with a large amount of small demonization currency Unusual nervousness beyond that of ordinary passengers
Courts have held that the presence of any one of these factors is not dispositive; but if several of these factors are present, it is likely to give an officer reasonable suspicion for a stop.
Reasonable Suspicion and Flight from the Police
Illinois v. Wardlow (p. 259)- if a person runs upon seeing the police, this is enough to justify a stop of that person. The Court held that an individual’s presence in a high crime area, on its own, is not sufficient for a stop, but unprovoked flight provides reasonable suspicion. This is consistent with Florida v. Royer, which held that when an officer without reasonable suspicion or probable cause, approached a person, the person has the right to ignore the police and go about his business. B. Limited Searches for Police Protection Under the Terry Doctrine
Minnesota v. Dickerson- the Court reaffirmed that Terry frisks are justified only for protective purposes and that a search for evidence is not permitted under Terry.
Officer suspected Dickerson of drug activity. PO patted him down and felt a small, hard object in Dickerson’s pocket. He determined that it wasn’t a weapon, but still continued to feel the object.
