Criminal Procedure

Class Three

ARREST AND THE WARRANT CLAUSE

Basic Concepts

• Arrest = seizure under 4th Amendment

• Not all custodial arrests require warrant

• However, all custodial arrests require probable cause

• PROBABLE CAUSE IS LYNCHPIN

Why Should We Care?

• Invalid arrest does not render continued confinement unlawful

• Invalid arrest in and of itself does not void resulting conviction

• Query: Why is the validity of arrest important for Defendant?

Arrest in Public

• Query: Is warrant required to make valid arrest in public for felony offense?

• Must officers demonstrate “exigent circumstances” [some emergency-type situation]?

Exercise

• Assume: You are a police officer. Why get an arrest warrant if you don’t have to? Why not just wait for your suspect to put in an appearance on the street?

• Task: ID at least 3 reasons

Excessive Force

• Can how an arrest is made (the force used) violate 4th Amendment?

Excessive Force

• Reasonable inquiry– depends on circumstances– objective standard

• Factors– severity of crime– whether immediate threat– whether actively resisting

Relief & Protections

• If officer arrests someone in public without a warrant, how do we ensure that the arrest was in fact based on probable cause?

Determining “promptness”

• Probable cause hearing 0-48 hours– presume OK– no systemicsystemic challenge– can still show individualindividual challenge

• Hearing 48+ hours– burden shifts to gov’t

Arrests at Home

• Do police need arrest warrant enter home to make arrest?

• Distinguish– “routine” vs. exigent

– consentual

Arrests at Third Party’s Home

• What documents gets police across the threshold?

• What document authorizes taking suspect into custody?

• Can arrested person challenge authority of police to enter 3rd party’s home?

Resident v. Guest v. On Premises

• Your status in your home

• Your status as overnight guest in someone else’s home

• Your status as someone “on the scene”

Material Witness

• General test: arrest & detain OK if impracticable to secure presence by subpoena

• Most states lack statutory limit on length of detention

• No constitutional right to $$$ compensation

STOP AND FRISK

Terry Doctrine

• “Stop and Frisk”

• Seizure

• Search

Terry v. Ohio

• When “seized”?– officer accosts and

restrains freedom to walk away

• Less than arrest• Detention• Limited in duration

• How “searched”?– pat down

– Frisk

• Less than full search• Scope: weapons• purpose: officer

protection

Terry’s Balancing Test

• Gov’t need for S/S

• vs.

• Degree of invasion

Terry Test

• Reasonable suspicion

• Less than probable cause– so less than needed for arrest

• Objective

• More than “inarticulate hunch”

Terry Applications

Sources of Information

• Tip or personal information permissible

• Could be less than needed to show probable cause for either:– full blown search– arrest

Routine Traffic Stops

• Drivers• Passengers

• Bright Line Rule

Occupants of Residence

• Conduct: police require occupants to remain while search warrant executed

• Always Reasonable

Encounter/Stop Distinction

Sliding Scale

EncounterSeizureArrest

NothingReas. Susp.P.C.

Encounter, Stop, or Arrest?

• If police/civilian interaction is “encounter” rather than stop, it is completely outside 4th Amendment. It needs no justification.

• Terry stop requires reasonable suspicion

• Arrest requires probable cause

Encounter: “Free to Leave” Test

• Mendenhall test

• Person “seized” only if, in view of all circumstances surrounding, a reasonable person would have believed he was not free to leave

• Objective test

Airport Encounters

• Officer conduct– Approaching individual on street or public

place– Asking if willing to answer questions– Putting questions to him

Airport Encounters

• Civilian Options– Need not answer– Decline to listen & walk away

Airport Encounters, con’t

• What legal impact if civilian walks away?– May NOT be detained, even momentarily,

without reasonable, objective grounds– Refusal to listen, without more, does not

provide that reasonable suspicion

Factory Sweeps

• Held no “seizure” despite fact guards were posted at doors … walkie-talkie … badges …. approached at work station and asked questions about citizen.

• Query: How does this fit with Mendenhall free to leave test?

Bus Sweeps

• Facts: Uniformed officers board a stopped bus, asked to inspect passenger’s ticket & ID … explain looking for illegal drugs … ask for consent to search luggage

Bus Sweeps

• Query: How does this fit with Mendenhall free to leave test?

• Consider: Bostick; Drayton -- When is a bus sweep a seizure?

Impact of Officer Intent

• Should it make a difference whether officer intended intended to terminate person’s freedom of movement or if her conduct merely had that effect?

Refusal to Submit

• Seizure in this context means taking possession

• Two types of “seizure”:– officer has physically touched OR– submission to assertion of authority

• Major modification of Mendenhall free to leave; must show more

Role of Flight

• Sudden flight can create reasonable suspicion justifying Terry stop

• No per se rule

Grounds for Terry Stop

• Can anonymous tip provide reasonable suspicion?

• “Sufficiently corroborated” -- as to what factors: illegality or heavily predictive

Profiles

• Race

• Drug courier

Limits on Terry Searches

• Only justifiable for protective purposes

• Does not permit search for evidence

Terry Searches Beyond the Person

• “Protective Sweep” of car

• Other persons

• “Protective Sweep” of premises

STOP VS. ARREST

• Forced Movement

• Identification

• Interrogation

• Temporal Limits

• Show of Force

Detention of Property

• Can Terry’s temporary detention apply to things as well as people?