criminal procedure class three. arrest and the warrant clause
TRANSCRIPT
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?