Chapters 12-15 Criminal Process

4th Amendment

Guarantees citizens the right to go about their business free of unreasonable

interference by the police

Protection against Unreasonable Search and Seizure by government officials

home, business, papers, bank accounts, computer, & personal items

Constitution does not give citizens absolute right to privacy

Define Search & Seizure

1. Searching persons for evidence2. Searching places and things for

evidence3. Seizing evidence4. Seizing a person (detaining)

Officer’s authority to detain citizens against their will is regulated by

3 principles1.4th Amendment2.State Constitution3.State arrest laws (statutory laws)

3 classes of Seizures (detaining a person)

1. Voluntary encounters2. Investigatory stops3. Arrests

What is a Seizure? Occurs when a suspect submits to a officer’s show of legal authority or the officer gains actual physical control of the suspect

• officers need reasonable suspicion to stop and question you

• Based on less info than probable cause

• Police officers are not required by law to inform you of your rights before asking you to consent to a search. In addition, police are prepared to use their authority to get people to consent to searches, and most people are predisposed to comply with any request an officer makes. For example, the average motorist stopped by an officer who asks them, "Would you mind if I search your vehicle, please?" will probably consent to the officer’s search without realizing that they have every right to deny the officer’s request.

• If for any reason you don’t want the officer digging through your belongings, you should refuse to consent by saying something like, "Yes, I do mind. I have private, personal items in my [car, backpack, etc.] and do not want you looking through them." If the officer still proceeds to search you and find illegal contraband, your attorney can argue that the contraband was discovered through an illegal search and hence should be thrown out of court.

Crossing the 4th Amendment Boundary

4th Amendment violated when seizure is unreasonable

1. Officer lacked adequate grounds for the seizure

2. Officer failed to secure a warrant in a situation in which one is required

3. Officer used excessive force to effect the seizure

Force may be used or varies w/ the seriousness of the offense, or if safety of officer or others appear at risk

Voluntary Encounters

• Not regulated by 4th Amendment• Police have a “free zone” for investigative work• Liberty to approach citizens and ask questions,

or request other forms of assistance• Suspect’s compliance w/ request in voluntary

and consensual• SEIZURE occurs when suspect’s freedom of

movement is restrict, suspect brought under control of officer, or physical restraint

Example

• Voluntary Encounter = police ask suspect to cooperate w/ investigation; to take a breathalyzer test – this occurs voluntarily

• 4th Amendment kicks in when suspect’s movement is restricted and suspect is brought under officer’s control

• Officer now has probable cause to believe suspect has committed a crime

• Suspect is under arrest, now we are exceeding the boundaries of investigatory stop

• Officers are free to ask for any form of voluntary assistance, identification, answer questions, permission to search belongings, consent to Breathalyzer, as long as they do not restrict the suspect’s freedom of movement or indicate that it is mandatory

• Suspect has right to refuse• Evidence is always admissible when

suspect furnishes it voluntarily

“Sticky Fingered Sam”• While patrolling neighborhood late one night,

officer sees Sticky Sam lugging a stereo down the street. Officer gets out of his car, w/ one hand on his revolver, stands in front of Sam and says “Hey! Put that stereo down and show me some ID” Sam stops and complies. Sam has been SEIZED

• Sam was seized by submission to a legal authority. Sam probably did not wish to, but he did. Physical seizure was not a factor, but Sam was still SEIZED

• Time of seizure important• Evidence procured from suspect

w/out a seizure is always admissible, whereas evidence procured after a seizure may or may not be admissible in court

• Admissibility will turn on whether the officer had grounds for the seizure

• Officers need to be aware of when they have constitutional grounds to proceed

• A narcotics detective observes a nervous young man pull out a roll of $100 bills at a airport ticket counter and pay cash for a one-way ticket. Acting on a hunch that he is a drug courier, she approaches him, shows her badge and says “Would you mind answering some questions about the purpose of your travel and contents of your bag?” The young man complies.

• Once again he complied to legal authority voluntarily

• Different approach• After observing the purchase,

detective approaches the young man, shows her badge and says in a commanding voice “You are under suspicion of transporting drugs. Pick up your bags and follow me. I am taking you to the security office for questioning” The young man complies.

• This encounter is considered a SEIZURE

• Young man was not “free to leave”

“Free to Leave”

• Perception of not being able to leave must arise from the behavior of the police

California v. Hodari D• Juvenile was standing on street corner ran

when he saw approaching police car• Officers got out and pursued him on foot,

yelling at him to stop• Juvenile discarded a rock of crack cocaine

seconds before the officers tackled him• Supreme Court ruled, even though officers

lacked grounds for seizing him before the chase, the evidence was still admissible

4 relevant degrees of suspicion1. Hunch lowest degree, encounter w/ suspect must be

voluntary, suspect may not be seized2. Investigatory detention is limited seizure made for

purpose of investigating circumstances that aroused officer’s suspicion

3. Probable Cause is police know enough to facts to warrant a reasonable person in believing, not just suspecting, that individual is guilty of a crime, probable cause to make a arrest

4. Beyond reasonable doubt = conviction and punishment

In order to determine constitutional grounds for action/Probable Cause

1. Identify all the facts and circumstance known at the time action was taken

2. Weigh the facts in combination and3. Evaluate their implications from the

perspective of trained officer

• Different degrees of suspicion carry very different legal consequences, there is no hard edged boundaries b/w the two

• Trained officers must understand varying degrees of reasonable suspicion

1.Things they observe2.Officer’s assumptions and interpretations• 2 men, street corner 1:00 a.m.• Neighborhood has frequent drug users• Drug transactions can take place 1:00 am• Money was seen being exchanged

Investigatory Stops

Officer activates lights and siren to stop a car

• Motorist has been seized thru submission to the officer’s show of legal authority

• Investigatory stops or arrests are limited seizures made for the purpose of conducting brief investigation

• Permissible under lower degree of suspicion= Reasonable Suspicion

Investigatory Stops*Terry v. Ohio 1968• Officer observes behavior that arouses

reasonable suspicion that criminal activity is occurring, but NOT probable cause for arrest

• Downtown Cleveland, 3 men gazing thru store window, they kept walking away and coming back to the window-5-6 times

• Suspecting them of ??????

• Officer approached them, ID himself and asked them their names, they mumbled something, officer grabbed one of them (Terry) and held him while patting down his exterior clothing, feeling a pistol, officer ordered Terry to remove coat and retrieve the pistol

• Terry was charged w/ carrying concealed weapon• Terry’s attorney wanted to suppress the evidence

on grounds the 4th Amendment does not allow officers to conduct a frisk w/out probably cause for an arrest

Supreme Court Ruling

• Officers may briefly detain individuals for questioning when their conduct arouses a reasonable suspicion

• Reasonable suspicion standard is less demanding than probable cause for an arrest

• When detention is justified, (Terry was held) police may conduct a protective weapons search

• Now known as a Terry Stop“pat and frisk”

Purpose of Terry Stop• Enables officer to investigate the

circumstances of suspicion that prompted the stop in order to confirm or dispel their suspicion w/in a relatively short period of time

• Terry’s case, reasonable suspicion led to probably cause, led to his arrest and conviction

Reasonable Suspicion1. Person is spotted in high crime area

or in close proximity 2. Person has a criminal record or in

company of others w/ past criminal record

3. Person attempted to avoid contact w/ officer

4. Person gives suspicious, inconsistent, or false answers to routine questions

5. Person appears abnormally nervous or fidgety

• Terry Stops need not to be based solely on the officer’s own personal observations

• Can come from TIPS, if reliable and tipster’s credibility

• You witnessed a customer drinking a can of beer while waiting for his order at a drive through window. You called the cops, and gave the information you observe red. They stopped him a few blocks away.

Illinois v. GatesFacts of the Case: • The Bloomingdale, Illinois Police Department received an anonymous tip

that Lance and Susan Gates were selling drugs out of their home. After observing the Gates's drug smuggling operation in action, police obtained a warrant and upon searching the suspects' car and home uncovered large quantities of marijuana, other contraband, and weapons.

Question: • Did the search of the Gates's home violate the Fourth and Fourteenth

Amendments?Conclusion: • The Court found no constitutional violation • Justice Rehnquist argued that an informant's veracity, reliability, and basis of

knowledge are important in determining probable cause, but that those issues are intertwined and should not be rigidly applied.

Purpose of Terry Stop• Is to enable the officer to

investigate the underlying suspicion as quickly as possible

• 4th Amendment does not allow police to detail citizens for lengthy periods on a mere suspicion of criminal activity

• Miranda Rights are not required during Terry Stops, unless arrest-like force is necessary to execute the stop

• Request for identification is most common, suspects may be arrested for refusing to disclose their name, b/c a person’s name is seldom incrimination

Terry Stop’s Purpose• Search for weapons• During pat down, officer feels an

object that he recognizes as contraband and seizes it, even though not a weapon

• “Plain Feel” doctrine– May or may not is admissible

Traffic and Vehicle Stops• Stopping a motorist is always a

seizure, whether it’s making an arrest, issue traffic citation, investigate non-traffic offense, or as simple as checking registration

• Reasonable suspicion to stop• Probable cause to make an arrest

Safety Precautions during Traffic StopsOfficers may take the following precautions1. Order you out of the car and passengers2. Ask if you have weapons in the vehicle3. Visually look inside the vehicle and

flashlight around the interior4. Run a criminal records checkReasonable suspicion search can become

more intrusive, searching compartments, frisking the occupants

• 4th Amendment is concerned w/ the stop’s duration not w/ the scope of the questioning that occurs during the stop

Traffic stop may lead to arrest, b/c of Probable Cause

The arrest is lawful, so is the search

Some states do not allow arrests for fine-only traffic violations

• While making an arrest, minimum force is used

• 1985 Supreme Court ruled “ deadly force may not be used unless it is necessary to prevent escape, and the officer has probable cause to believe the suspect poses a significant threat of death or serious physical harm to the officer or others”

What is an Arrest? 1. Formal Arrest

– Intentional, the intent is announced to the suspect

2. De Facto Arrest– Unintentional , beyond reasonable suspicion now

probable cause becomes necessary

Probable Cause for Arrest• Officer applies for arrest warrant by

preparing a sworn affidavit detailing the results of the investigation

• Magistrate reviews the officer’s affidavit and determines whether the facts est. probable cause for an arrest

• Of course, there may be times when warrant is not available

Probable Cause exist to…1. Obtain search warrant2. Conduct some searches w/out a warrant3. Obtain an arrest warrant4. Make an arrest w/out an warrant

• Probable Cause depends entirely on the facts of EACH

case

• Public areas probable cause is enough

• Private areas need a warrant unless exigent circumstances

• Search warrant is a court order• Officer must file an affidavit, facts that provides

probably cause/ search is justified• Warrant must describe the person, place, and

the particular things to be seized• Given certain number of days• Can seize evidence related to the case if in plain

view when properly conducting the search (not on warrant)

• Proceed w/ “knock and announce” test

Court does allow “no-knock” entries under certain circumstances = Exigent Circumstances– Consent given– Hot pursuit of suspect– Danger to officer’s safety– Danger to third party– Risk of suspect’s escape– Risk of destruction of evidence

• Warrants only when the arrest is made inside a private dwelling

• Do not have to procure a warrant to make arrest in public place or inside a commercial establishment (hotels for example)

• People to voluntarily leave confines of their home, stand on their porch, in their yard-given up their right to “private” dwelling

Searches

• Plain View

California v. CiraoloFacts of the Case: • The Santa Clara Police received an anonymous tip that Ciraolo was growing

marijuana in his back yard. Unable to observe the yard from the ground due to a high fence which encircled it, the police secured a private plane and flew over Ciraolo's house at an altitude of 1,000 feet. The fly-over confirmed the presence of marijuana. The police then obtained a search warrant, seized 73 plants on the next day, and arrested Ciraolo who then pleaded guilty to the cultivation of marijuana. The California Court of Appeals, however, found that the aerial observation was illegal and reversed Ciraolo's conviction.

Question: • Did the warrantless, aerial observation of Ciraolo's back yard from an altitude of

1,000 feet constitute an illegal search and violate the Fourth Amendment?Conclusion: • The divided Court found that the observation did not violate the Constitution.

Chief Justice Burger reasoned that the Fourth Amendment protections regarding the home had never been absolute: for example, police officers are not obligated to shield their eyes when passing homes on public streets or sidewalks.

• Since the observations of the Santa Clara officers was "nonintrusive" and "took place within public navigable airspace," their actions were consistent with the Fourth Amendment. "Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed," concluded Burger.

Bond v. United StatesFacts of the Case: • While checking the immigration status of passengers on a bus in Texas, Border Patrol Agent Cesar

Cantu squeezed the soft luggage which passengers had placed in the overhead storage space. When Agent Cantu squeezed a canvas bag above Steven Dewayne Bond, Agent Cantu noticed that it contained a "brick-like" object. After Bond admitted owning the bag and consented to its search, Agent Cantu discovered a "brick" of methamphetamine. Bond was indicted on federal drug charges. Bond moved to suppress the drugs, arguing that the agent conducted an illegal search of his bag, when squeezing it, in alleged violation of the Federal Constitution's Fourth Amendment prohibition against unreasonable searches and seizures. The District Court denied the motion and subsequently found Bond guilty. On appeal, Bond conceded that other passengers had access to his bag, but contended that Agent Cantu manipulated the bag (by squeezing)in a way that other passengers would not, thus constituting an unreasonable search. In affirming the denial of the motion, the Court of Appeals held that Agent Cantu's manipulation of the bag was not a search under the Fourth Amendment.

Question: • Does a law enforcement officer's physical manipulation of a bus passenger's carry-on luggage

violate the Fourth Amendment's protection against unreasonable searches?Conclusion: • Yes. In a 7-2 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "Agent

Cantu's physical manipulation of petitioner's carry-on bag violated the Fourth Amendment's proscription against unreasonable searches." The Court concluded that Bond "possessed a privacy interest in his bag," and that such an expectation of privacy is reasonable.

• "Physically invasive inspection is simply more intrusive than purely visual inspection," Chief Justice Rehnquist wrote for the Court, a bus passenger "does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner."

Scope of a Search

• Probable Cause = Search Warrant• Search authority under a warrant only

extends to the locations describe in it• Issued for “Sam’s” kitchen, then police

may NOT search bedroom, garage, tool shed, etc…

• Intensity of Search = police may only look in places that are potential areas of the objects for which they have a search authority

Searching for stolen pink baby elephant, can not look under the bed, open envelopes, in size 10 shoe, etc…

• You can give consent to a search• A Third party consent extends to the areas

shared in common• Male can not give consent to female

roommate’s purse even if in an area of the house shared by both

• Male gave consent to search for drugs, whole entire apartment would be under authority

• Police are not required to advise people of their right to refuse when asking for permission to search

• Vehicle search based on probable cause• If they had to leave to secure a warrant, the

vehicle would be gone• Can search if they believe vehicle contains

evidence that they may lawfully seize• If looking for a stolen television, can not

look in your purse

• Traffic Stop-officer can order all passengers to get out of the car

• 1997 Supreme Court reversed previous ruling

• William Rehnquist said the intrusion on the passenger's privacy is minimal and not a violation of the Fourth Amendment.

Weeks v. United States• Missouri state law enforcement agents, without a proper warrant,

conducted a raid on the home of Mr. Weeks. They were looking to obtain any evidence that Mr. Weeks was guilty of the crime of gambling.

• The state law enforcement agents returned later with a federal marshal and a federal postal inspector in order to search for more evidence. The drawers were searched; letters and envelopes were seized as evidence without a police warrant and not long after that, Mr. Weeks was arrested in Kansas City, Missouri.

• He was charged with a federal crime because evidence turned up that he was using the mail to send lottery tickets

• Weeks was tried and convicted on federal charges • During his trial, he demanded the return of his personal effects, which

had been seized as evidence during warrantless searches by state officers and a federal marshal, and their exclusion as evidence in the trial.

• When the court refused, Weeks took the case to the Supreme Court on the basis that use of illegal evidence violated his rights

Weeks v. U.S. cont.• In a unanimous decision, the Court held that the seizure of

items from Weeks' residence directly violated his constitutional rights.

• The Court also held that the government's refusal to return Weeks' possessions violated the Fourth Amendment.

• To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever.

• This was the first application of what eventually became known as the "exclusionary rule." (federal cases only)

Motion to suppress evidence = Exclusionary Rule

Mapp v. Ohio est. this rule to include Federal and State cases

Mapp v. Ohio 1961• Dollree Mapp lived in Cleveland, Ohio. One day, the police

broke into Mapp's house to look for a suspected bomber. Mapp had refused to let the police into her house earlier because they did not have a search warrant. When the police broke in, they showed Mapp a piece of paper. They said the paper was a search warrant, but they did not let her see it.

• The police searched Mapp's house without her permission. They looked in her room, her daughter's bedroom, the kitchen, the living room, and the basement. In the basement they found a trunk. Inside the trunk were obscene pictures, photographs, and books. The police did not find the bomber, but they arrested Mapp anyway. They said she broke the law by having obscene pictures.

• The court found her guilty. • Supreme Court of the United States overturned the conviction• The Fourth Amendment to the U.S. Constitution protects people

from unreasonable searches by the government.

Mapp v Ohio cont.• The Court declared that "all evidence obtained by

searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court."

• Mapp had been convicted on the basis of illegally obtained evidence.

• This was an historic -- and controversial -- decision.• It placed the requirement of excluding illegally

obtained evidence from court at all levels of the government.

• The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule.

Exclusionary Rule

• Rule is still unclear• “Good faith” exceptions• Scope of flexibility w/out a warrant is undefined• Typically courts tilt in favor of the law enforcement

officials

Search under Exigent Circumstances

• Hot pursuit• Threat to safety

– Police may engage in protective sweeps, weapons search or frisk

• Threatened destruction of evidence

Abandoned Property• Garbage

Searches w/out warrants1. During lawful arrest, search the person and

surrounding area “grab area”2. Conduct “protective sweep” home for

potentially armed persons3. “Stop and Frisk” suspicious person4. “Plain Feel” seize drugs during frisk5. During consent6. Hot pursuit7. Vehicles with a probable cause8. Emergency situations (serious crimes)9. Border and Airport searches

Technology- “plain view”• The Supreme Court has in recent years upheld a number

of police surveillance techniques on the grounds that they did not constitute searches under the Constitution.

• Tactics okayed by the Court include the use of drug-sniffing dogs, the use of binoculars to look in a yard, and the use of low flying airplanes and helicopters to spy on private property.

• In all of those instances, the court held that officers were free to use their senses to peer into a private area.

• Sophisticated surveillance devices that can see through walls are different, the court held. Allowing warrantless searches with such devices "would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home," Scalia wrote. – Heat sensors for warrrantless drug searches

Suspicionless SearchesControversial

• Example: Sobriety checkpointsMetal detectorsRandom drug testing

Stratford High School in Goose Creek, S.C.Border controlPrison cell searchers Mass transit

Racial Profiling Exist?

4th Amendment and Schools

School searches• The United States Supreme Court also held that

School children have legitimate expectations of privacy and are protected against an illegal search by the police.

• HOWEVER• search of a student by a school official will be

justified when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school

Public School Searches• New Jersey v. TLO (1985)• “school official may properly conduct a search

of a student's person if the official has a reasonable suspicion that a crime has been…committed, or reasonable cause to believe that the search is necessary to maintain school discipline….” In other words, in a school, a search could be reasonable under the 4th Amendment without probable cause, so long as it was supported by reasonable suspicion or reasonable cause

• In 1980,NJ a teacher found T.L.O. and another girl smoking in a restroom—a place that was by school rule a nonsmoking area. The two girls were taken to the principal's office where T.L.O.'s companion admitted that she had been smoking in the restroom. T.L.O. denied smoking there. She denied that she smoked at all. An assistant vice-principal demanded to see T.L.O.'s purse. Searching through it he found a pack of cigarettes. He also found rolling papers, a pipe, marijuana, a large wad of dollar bills, and two letters that indicated that T.L.O. was involved in marijuana dealing at the high school.

Drug Testing for schools• 2002, the Supreme Court considered a case challenging a Tecumseh,

Oklahoma policy of drug-testing all high school students who participate in extracurricular activities.

• Parents of Lindsey Earls sued when school officials forced Lindsey to provide a urine sample before she sang in the high school choir and participated on an academic quiz team.

• Lindsey (who is now a student at Dartmouth) described the experience as "horrible--someone would stand outside the bathroom stall and listen."

• The 10th Circuit Court of Appeals ruled that the Tecumseh policy was unreasonable, failing to meet the "special needs" requirement of Vernonia.

• "students within the school environment have a lesser expectation of privacy than members of the population generally."

• The Court, by a 5 to 4 vote reversed the 10th Circuit and upheld the school's drug testing policy.

Strip-search at schoolSupreme Court Summer 2009

• Arizona school officials violated the constitutional rights of a 13-year-old girl when they strip-searched her on the suspicion she might be hiding ibuprofen in her underwear, the Supreme Court ruled yesterday. The decision put school districts on notice that such searches are "categorically distinct" from other efforts to combat illegal drugs.

• It IS reasonable to search the girl's backpack and outer clothes• "The meaning of such a search, and the degradation its

subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions,"

• http://www.usatoday.com/news/washington/judicial/2009-04-21-supreme-court-strip-search_N.htm

• Minors generally have the same rights as adults. For example, minors can refuse searches and decline to answer questions without an attorney present.

• Nonetheless, minors face unique challenges when attempting to exercise these rights. Young people are highly susceptible to coercion by authority figures, and are easily convinced to waive their rights. Police will often take advantage of this by telling young people: “You’re underage. You don’t have any rights.” This, of course, is a lie.

• The rights of minors are also undermined by the fact that young people tend not to own property. Young people often use shared spaces, both at home and at school, which are controlled by adults. Since property owners may grant access to police and even authorize searches in many cases, young people have a reduced ability to protect their 4th Amendment rights when sharing space with others. The best protection is to clearly mark your own property so that it’s clear that it’s yours. Even your parents can’t consent to a search of something that’s clearly yours alone.