CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The Fourth Amendment: The right of the people to be...

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCHCONSTITUTIONAL FOUNDATION TO ARREST & SEARCH

The Fourth Amendment:The Fourth Amendment:

The right of the people to be secure The right of the people to be secure in their persons, houses, papers, and in their persons, houses, papers, and

effects, against unreasonable effects, against unreasonable searches and seizures, shall not be searches and seizures, shall not be

violated, and no warrants shall violated, and no warrants shall issue, but upon probable cause, issue, but upon probable cause, supported by oath or affirmation, supported by oath or affirmation,

and particularly describing the place and particularly describing the place to be searched, and the persons or to be searched, and the persons or

things to be seized.things to be seized.








PROBABLE CAUSEPROBABLE CAUSEAbsolute Certainty

Probable Probable CauseCause

(Articulable) Reasonable (Articulable) Reasonable SuspicionSuspicion

Possibility / Hunch

Proof Beyond a Reasonable Doubt

PROBABLE CAUSEPROBABLE CAUSE

In layman’s terms, how will you In layman’s terms, how will you define Probable Cause define Probable Cause for a jury.for a jury.

A A reasonably prudent personreasonably prudent person would would

believe: believe: – that a crime has been that a crime has been

committedcommitted– that the person to be arrested that the person to be arrested

has committed that crime has committed that crime

PROBABLE CAUSEPROBABLE CAUSE

Test for Probable CauseTest for Probable Cause

The focus in determining The focus in determining probable cause is not on the probable cause is not on the certaintycertainty that a crime was that a crime was committed, but on the committed, but on the likelihoodlikelihood of of it. it.

Don’t have to be Don’t have to be RIGHTRIGHT; ; but,but, you you do have to be do have to be REASONABLEREASONABLE

Indications of Criminal Activity That May Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSEContribute to a Finding of PROBABLE CAUSE

Suspect Demeanor or Reaction to OfficerSuspect Demeanor or Reaction to OfficerFlight is one factor to be considered.Flight is one factor to be considered.SibronSibron v. New York (1968) ~ “ v. New York (1968) ~ “Deliberately Deliberately

furtivefurtive actions and actions and flightflight at the approach of at the approach of strangers or law officers are strong indicia of strangers or law officers are strong indicia of mensmens rearea (a guilty mind), and when coupled (a guilty mind), and when coupled with with specificspecific knowledgeknowledge on the part of the on the part of the officer relating the suspect to the evidence of officer relating the suspect to the evidence of the crime, they are proper the crime, they are proper factorsfactors to be to be considered in the decision to make an considered in the decision to make an arrest.”arrest.”

Indications of Criminal Activity That May Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSEContribute to a Finding of PROBABLE CAUSE

Suspect Demeanor or Reaction to OfficerSuspect Demeanor or Reaction to OfficerFlight in itself Flight in itself willwill notnot independently support independently support

a probable cause finding.a probable cause finding.Wong Son v US (1963) ~ officers responded Wong Son v US (1963) ~ officers responded

to a suspect's home who was believed to be to a suspect's home who was believed to be selling heroin. When the suspect answered selling heroin. When the suspect answered the door he turned and ran with officers in the door he turned and ran with officers in pursuit. The court found that his subsequent pursuit. The court found that his subsequent seizure was invalid because officers did not seizure was invalid because officers did not have probable cause to arrest him simply have probable cause to arrest him simply because he ran away.because he ran away.

POLICE AUTHORITY TO DETAINPOLICE AUTHORITY TO DETAIN

Looking at the right of police officers to Looking at the right of police officers to stop a suspect under circumstances in stop a suspect under circumstances in

which there was insufficient grounds for which there was insufficient grounds for an actual arrestan actual arrest

Requires Requires REASONABLE ARTICULABLE REASONABLE ARTICULABLE SUSPICIONSUSPICION

This does This does NOTNOT authorize authorize police to detain anyone police to detain anyone on mere SUSPICION on mere SUSPICION or a HUNCH! or a HUNCH!

Beyond Reasonable DoubtBeyond Reasonable Doubt

Clear and ConvincingClear and Convincing

PreponderancePreponderance

Probable CauseProbable Cause

Reasonable Suspicion ~ articulable (Reasonable Suspicion ~ articulable (explain the factsexplain the facts))

Hunches or Whims ~ can’t articulateHunches or Whims ~ can’t articulate

Investig

ation

Investig

ation

Trial

Trial

_____


Terry v. Ohio, 1968

In In TerryTerry, the US Supreme Court upheld , the US Supreme Court upheld the authority of the police to stop or the authority of the police to stop or detain detain (or seize)(or seize) a person where the a person where the

officer observes unusual conduct officer observes unusual conduct which leads the officer reasonably to which leads the officer reasonably to

conclude, in light of his/her experience conclude, in light of his/her experience (including training)(including training), that criminal , that criminal

activity may be activity may be afootafoot..

““Terry Stop” vs. “Terry Frisk”Terry Stop” vs. “Terry Frisk”


Terry v. Ohio, 1968

A Terry StopA Terry Stop - an investigative detention of a - an investigative detention of a suspect. suspect. NotNot a search! a search!

Officers can conduct a Terry Stop with Officers can conduct a Terry Stop with reasonable reasonable (articulable/explainable) (articulable/explainable) suspicion suspicion

that criminal activity is that criminal activity is afootafoot. .

Officers can stop a suspect and investigate Officers can stop a suspect and investigate that person for a that person for a reasonablereasonable period of time. period of time.

Even though its Even though its notnot a formal arrest, it is a a formal arrest, it is a seizureseizure under the 4 under the 4thth Amendment. Amendment.

Reasonable Suspicion + Armed & Dangerous Reasonable Suspicion + Armed & Dangerous ==

TerryTerry requires an officer to articulate a requires an officer to articulate a reasonablereasonable belief that a suspect is armed belief that a suspect is armed and poses a threat before the officer is and poses a threat before the officer is permitted to conduct a permitted to conduct a limitedlimited “Pat Down” “Pat Down” of the suspect’s outer clothing.of the suspect’s outer clothing.

Just because I can “Terry Stop” Just because I can “Terry Stop” someone doesn’t someone doesn’t automatically give me the automatically give me the right to frisk them for a right to frisk them for a weaponweapon..















Frisking Containers

An officer who finds a closed An officer who finds a closed container within lunging distance of a container within lunging distance of a suspect who is being suspect who is being lawfully lawfully stopped and friskedstopped and frisked, may open the , may open the container to see if it contains a container to see if it contains a weapon if: weapon if:

in light of the officer’s experience in light of the officer’s experience and training the item could contain a and training the item could contain a weapon, and weapon, and

the container is NOT lockedthe container is NOT locked


Terry v. Ohio, 1968

Search or Search or “Frisk” “Frisk” is going to be limited is going to be limited to searching for to searching for hardhard objects… objects… That the suspect could use to That the suspect could use to hurthurt the the officer like guns, pocket knives, mace, officer like guns, pocket knives, mace, clubs, … clubs, … Not limited to just those things we Not limited to just those things we ordinarily think are weapons… ordinarily think are weapons… It could also be things like car keys or It could also be things like car keys or pens because those could pens because those could hurthurt an an officer as well…officer as well…


Terry v. Ohio, 1968

While an officer may want to conduct While an officer may want to conduct a frisk for “a frisk for “officer safetyofficer safety” purposes, ” purposes, the law requires more than that. the law requires more than that. Reasonable suspicion that someone’s Reasonable suspicion that someone’s presently armed and dangerous is just presently armed and dangerous is just what it sounds like, but most what it sounds like, but most importantly, the officer has to importantly, the officer has to have have factsfacts to support that to support that conclusion.conclusion.


Terry v. Ohio, 1968

Look, Feel, Crush and Twist – Look, Feel, Crush and Twist – FLETCFLETCYou can manipulate hard objects as much You can manipulate hard objects as much as necessary to ensure they are not as necessary to ensure they are not weapons! You may NOT manipulate soft weapons! You may NOT manipulate soft objects that could not be a weapon.objects that could not be a weapon.If your actions are If your actions are reasonablereasonable and and executed only to executed only to determine whether the determine whether the suspect possesses a suspect possesses a weapon, then the weapon, then the “Terry Frisk” is “Terry Frisk” is constitutionally proper constitutionally proper


Terry v. Ohio, 1968

Example: Can you conduct a Terry Example: Can you conduct a Terry StopStop of of someone if there is reasonable someone if there is reasonable (articulable/explainable) suspicion he is in (articulable/explainable) suspicion he is in possession of a stolen credit card? possession of a stolen credit card? The officer The officer willwill want to conduct a brief want to conduct a brief detention to investigate further.detention to investigate further.Is there anything about being in possession Is there anything about being in possession of stolen credit cards that would of stolen credit cards that would automaticallyautomatically lead you to believe the lead you to believe the person is armed and dangerous?person is armed and dangerous?Without additional facts: a Terry Stop is Without additional facts: a Terry Stop is authorized, but not a Terry Frisk authorized, but not a Terry Frisk


Terry v. Ohio, 1968

Offenses like drug distribution or burglary Offenses like drug distribution or burglary just go with weapons.just go with weapons.Courts have held that people who sell drugs Courts have held that people who sell drugs most often carry weapons to protect their money most often carry weapons to protect their money and product.and product.Burglars need burglary tools - things to break Burglars need burglary tools - things to break windows, screw drivers, and crow bars to pry windows, screw drivers, and crow bars to pry doors open.doors open.In Terry the detective had In Terry the detective had reasonable suspicion to reasonable suspicion to believe an armed robbery believe an armed robbery was afoot. was afoot.

Reasons For The Frisk: Articulating Reasons For The Frisk: Articulating Your Reasonable SuspicionYour Reasonable Suspicion

• Person’s Person’s AppearanceAppearance

• Person’s ActionsPerson’s Actions• Prior Knowledge Prior Knowledge

of the Personof the Person• LocationLocation

• Time of DayTime of Day• Law Law

Enforcement Enforcement PurposesPurposes

• CompanionCompanion


Terry v. Ohio, 1968

Scenario #1Scenario #1

A male comes into your agency to A male comes into your agency to retrieve property from his impounded retrieve property from his impounded vehicle. You run a warrant check and vehicle. You run a warrant check and learn that there is an outstanding learn that there is an outstanding felony arrest warrant for the male in felony arrest warrant for the male in an adjacent jurisdiction. You arrest an adjacent jurisdiction. You arrest the male; and, incident to the the male; and, incident to the arrest, confiscate meth and a arrest, confiscate meth and a firearm from his person.firearm from his person.


Later on, you discover that the warrant Later on, you discover that the warrant had been recalled nearly three (3) had been recalled nearly three (3) months ago; however, the other months ago; however, the other Agency, unbeknownst to you, forgot Agency, unbeknownst to you, forgot to pull the warrant. to pull the warrant.

Since a police agency made the Since a police agency made the mistake and another police agency mistake and another police agency will be benefitting from the mistake will be benefitting from the mistake by the admission of the evidence, by the admission of the evidence, should this evidence be excluded?should this evidence be excluded?


““When police mistakes leading to an When police mistakes leading to an unlawful search are the result of unlawful search are the result of isolated negligence attenuated from isolated negligence attenuated from the search rather than systemic error the search rather than systemic error or reckless disregard of constitutional or reckless disregard of constitutional requirements, the exclusionary rule requirements, the exclusionary rule does not apply.” does not apply.” Herring v. U.S.,Herring v. U.S.,(Jan 14, 2009)(Jan 14, 2009)

U.S. v. Quinney, U.S. v. Quinney, October 01, 2009October 01, 2009

Under the inevitable-discovery Under the inevitable-discovery doctrine, if the prosecution can doctrine, if the prosecution can establish by a preponderance of the establish by a preponderance of the evidence that the information evidence that the information ultimately or inevitably would have ultimately or inevitably would have been discovered by lawful means, been discovered by lawful means, then the deterrence rationale then the deterrence rationale of the exclusionary rule has of the exclusionary rule has so little basis that the so little basis that the evidence should be received. evidence should be received.

U.S. v. Quinney, U.S. v. Quinney, October 01, 2009October 01, 2009

However, the inevitable-discovery However, the inevitable-discovery doctrine does not permit police, who doctrine does not permit police, who have probable cause to believe a have probable cause to believe a home contains contraband, to enter home contains contraband, to enter a home illegally, conduct a a home illegally, conduct a warrantless search and escape the warrantless search and escape the exclusionary rule on the ground that exclusionary rule on the ground that the police the police could have obtained could have obtained a warrant yet chose not to do a warrant yet chose not to do so. so.

The Exclusionary RuleThe Exclusionary Rule

““The fact that a search or arrest was The fact that a search or arrest was unreasonable does not necessarily unreasonable does not necessarily mean that the exclusionary rule mean that the exclusionary rule applies.” applies.” IllinoisIllinois v. v. GatesGates, (1983). , (1983). ““The [exclusionary] rule is not an The [exclusionary] rule is not an individual right and applies only where individual right and applies only where its deterrent effect outweighs the its deterrent effect outweighs the substantial cost of letting guilty and substantial cost of letting guilty and possibly dangerous defendants go possibly dangerous defendants go free.” free.” U.S. v. Leon,U.S. v. Leon, (1984) (1984)

Florida v. Powell, Florida v. Powell, U.S. 1898, Feb 23, 2010 U.S. 1898, Feb 23, 2010

• Miranda warnings that failed to expressly Miranda warnings that failed to expressly state that the state that the suspect had a right to have suspect had a right to have a lawyer present during the questioninga lawyer present during the questioning, , but advised that he had “the right to talk but advised that he had “the right to talk to a lawyer before answering any of our to a lawyer before answering any of our questions” and the right to exercise that questions” and the right to exercise that right at “anytime you want right at “anytime you want during this interview,” during this interview,” adequately conveyed his adequately conveyed his rights under Miranda.rights under Miranda.

Maryland v. Shatzer, Maryland v. Shatzer, 1899, 1899, (Feb 24, 2010)(Feb 24, 2010)

A break in Miranda custody of A break in Miranda custody of fourteen (14) days provides ample fourteen (14) days provides ample time for the suspect to get re-time for the suspect to get re-acclimated to his normal life, to acclimated to his normal life, to consult with friends and family and consult with friends and family and counsel, and shake counsel, and shake off any residual off any residual coercive effects of coercive effects of prior custody. prior custody.

Maryland v. Shatzer, Maryland v. Shatzer, 1899, 1899, (Feb 24, 2010)(Feb 24, 2010)

If a suspect invokes counsel under If a suspect invokes counsel under Miranda while in custody and is then Miranda while in custody and is then released, nothing prohibits law released, nothing prohibits law enforcement from approaching, enforcement from approaching, asking questions, and obtaining a asking questions, and obtaining a statement without the Miranda statement without the Miranda lawyer present from the lawyer present from the suspect who remains suspect who remains out of custodyout of custody.

U.S. v. Panak, U.S. v. Panak, 66thth Circuit (Jan 09, 2009) Circuit (Jan 09, 2009)

Should the officers subjective knowledge Should the officers subjective knowledge determine when to advise Miranda?determine when to advise Miranda?

An officer’s knowledge of an individual’s An officer’s knowledge of an individual’s guilt may bear upon the custody issue - guilt may bear upon the custody issue - NOTNOT because the officer possesses because the officer possesses incriminating evidence but because he incriminating evidence but because he HASHAS conveyed it… and thus has conveyed it… and thus has used the information to create a used the information to create a hostile, coercive, freedom-hostile, coercive, freedom-inhibiting atmosphereinhibiting atmosphere.

U.S. v. Panak, U.S. v. Panak, 66thth Circuit (Jan 09, 2009) Circuit (Jan 09, 2009)

That is why such knowledge is That is why such knowledge is relevant only if… relevant only if…

1.1.……it was somehow manifested to the it was somehow manifested to the individual under interrogation and individual under interrogation and

2.2.……it would have affected how a it would have affected how a reasonable person in that reasonable person in that position would perceive position would perceive his or her freedom to leave. his or her freedom to leave.

AUTHORITY TO ENTER: WARRANTLESS SEARCH & AUTHORITY TO ENTER: WARRANTLESS SEARCH & ARRESTARREST

1.1.Fresh Pursuit (Fresh Pursuit (““Hot PursuitHot Pursuit””))

2.2.Immediate Destruction of Immediate Destruction of EvidenceEvidence

3.3.Public Safety and/or WelfarePublic Safety and/or Welfare

4.4.Prevent Escape of a SuspectPrevent Escape of a Suspect

MICHIGAN MICHIGAN v.v. FISHER, 2009 FISHER, 2009Police officers responded to a complaint Police officers responded to a complaint of a disturbance of a disturbance

A couple directed them to a residence A couple directed them to a residence where a man was "going crazy" where a man was "going crazy"

Officers found a household in Officers found a household in considerable chaos: a pickup truck in considerable chaos: a pickup truck in the driveway with its front smashed, the driveway with its front smashed, damaged fence posts along the side of damaged fence posts along the side of the property, and three broken house the property, and three broken house windows, the glass still on the ground windows, the glass still on the ground outsideoutside

MICHIGAN MICHIGAN v.v. FISHER, 2009 FISHER, 2009

Officers also noticed blood on the Officers also noticed blood on the hood of the pickup and on clothes hood of the pickup and on clothes inside of it, as well as on one of the inside of it, as well as on one of the doors to the housedoors to the house

Through a window, the officers could Through a window, the officers could see respondent, Jeremy Fisher, inside see respondent, Jeremy Fisher, inside the house, screaming and throwing the house, screaming and throwing things. The back door was locked, and things. The back door was locked, and a couch had been placed to block the a couch had been placed to block the front door.front door.

MICHIGAN MICHIGAN v.v. FISHER, 2009 FISHER, 2009They saw that Fisher had a cut on his They saw that Fisher had a cut on his hand, and they asked him whether he hand, and they asked him whether he needed medical attention. Fisher ignored needed medical attention. Fisher ignored these questions and demanded, with these questions and demanded, with accompanying profanity, that the officers accompanying profanity, that the officers go to get a search warrantgo to get a search warrant

Officer Goolsby then pushed the front Officer Goolsby then pushed the front door partway open and ventured into the door partway open and ventured into the house. Through the window of the open house. Through the window of the open door he saw Fisher pointing a long gun door he saw Fisher pointing a long gun at him. Officer Goolsby withdrewat him. Officer Goolsby withdrew

MICHIGAN MICHIGAN v.v. FISHER, 2009 FISHER, 2009Fisher was charged under Michigan law Fisher was charged under Michigan law with assault with a dangerous weapon with assault with a dangerous weapon and possession of a firearm during the and possession of a firearm during the commission of a felonycommission of a felony

Michigan Supreme Court: Search did not Michigan Supreme Court: Search did not meet the “Exigent Circumstance” meet the “Exigent Circumstance” requirement since Fisher was alone and requirement since Fisher was alone and the officers did NOT really believe he the officers did NOT really believe he needed immediate medical assistance.needed immediate medical assistance.

Is the search a violation under the Is the search a violation under the 44thth Amendment? Amendment?

MICHIGAN MICHIGAN v.v. FISHER, 2009 FISHER, 2009

It would be objectively reasonable It would be objectively reasonable to believe that Fisher's projectiles to believe that Fisher's projectiles might have a human target might have a human target (perhaps a spouse or a child), or (perhaps a spouse or a child), or that Fisher would that Fisher would hurt himself in hurt himself in the course of his the course of his rage. rage.

MICHIGAN MICHIGAN v.v. FISHER, 2009 FISHER, 2009Officers do not need ironclad proof of "a Officers do not need ironclad proof of "a likely serious, life-threatening" injury to likely serious, life-threatening" injury to invoke the emergency aid exception.invoke the emergency aid exception.

Moreover, even if Goolsby did not Moreover, even if Goolsby did not subjectively believe, that Fisher or subjectively believe, that Fisher or someone else was seriously injured, the someone else was seriously injured, the test is test is NOT NOT what Officer Goolsby believed…what Officer Goolsby believed…

……but whether there was but whether there was "an objectively "an objectively reasonable basis for believing" reasonable basis for believing" that that medical assistance was needed, or persons medical assistance was needed, or persons were in dangerwere in danger

Mobile Conveyance Mobile Conveyance ExceptionException

2 requirements to search2 requirements to search

1.1.Must be probable cause to believe Must be probable cause to believe that evidence of a crime or that evidence of a crime or contraband is located in the vehicle contraband is located in the vehicle to be searched. to be searched.

2.2.The vehicle be “readily The vehicle be “readily mobile.” mobile.”

Carroll v. United StatesCarroll v. United States (1925) (1925)

If an officer stops a car based on If an officer stops a car based on probable cause and conducts a probable cause and conducts a search in order to preserve evidence search in order to preserve evidence due to the automobile‘s mobility, the due to the automobile‘s mobility, the search may be conducted without a search may be conducted without a warrant.warrant.

Chambers v. MaroneyChambers v. Maroney (1970) (1970)

A warrantless search of a A warrantless search of a vehicle is valid despite the vehicle is valid despite the fact that a warrant could fact that a warrant could have been procured have been procured without endangering without endangering the preservation of the preservation of evidence.evidence.

United States v. RossUnited States v. Ross(1982)(1982)

If probable cause justifies the If probable cause justifies the search of a lawfully stopped search of a lawfully stopped vehicle, it justifies the search vehicle, it justifies the search of every part of the vehicle of every part of the vehicle and its contents that and its contents that may conceal the may conceal the object of the search.object of the search.

Maryland v. DysonMaryland v. Dyson(1999)(1999)

Officers are not required to Officers are not required to obtain a search warrant for a obtain a search warrant for a mobile conveyance even if mobile conveyance even if they have they have time to time to secure one.secure one.

California v. CarneyCalifornia v. Carney(1985)(1985)

A motor home is treated as a A motor home is treated as a vehicle, rather than a vehicle, rather than a dwelling, if it is dwelling, if it is immediately mobile.immediately mobile.

California v. Acevedo California v. Acevedo (1991)(1991)In a search extending to a container In a search extending to a container located in an automobile, police may located in an automobile, police may search the container without a warrant search the container without a warrant where they have probable cause to where they have probable cause to believe that it holds contraband or believe that it holds contraband or evidence.evidence.

Wyoming v. Houghton (1999) The Wyoming v. Houghton (1999) The mobile conveyance exception to the 4th mobile conveyance exception to the 4th Amendment‘s warrant requirement Amendment‘s warrant requirement allows the officers to search allows the officers to search passengers‘ containers.passengers‘ containers.

OHIO v. MOOREOHIO v. MOORE (2000) (2000), 90 , 90 Ohio St.3d 47. Ohio St.3d 47.

The smell of marijuana, alone, by a The smell of marijuana, alone, by a person person qualifiedqualified to recognize the to recognize the odor, is sufficient to establish odor, is sufficient to establish probable cause to conduct a search. probable cause to conduct a search.

There need be no additional factors There need be no additional factors to corroborate the to corroborate the suspicion of the suspicion of the presence of marijuanapresence of marijuana.

OHIO v. HOWARDOHIO v. HOWARD, , (2008) (2008) Ohio-2706 Ohio-2706

In Ohio v. Farris, the Ohio Supreme Court fleshed out the “plain-smell” doctrine by holding that the odor of burned marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle

OHIO v. HOWARDOHIO v. HOWARD, , (2008) (2008) Ohio-2706 Ohio-2706

Here, the officers, who were trained and Here, the officers, who were trained and experienced in detecting the odor of experienced in detecting the odor of unburned marijuana, both testified that unburned marijuana, both testified that they had smelled a strong odor of they had smelled a strong odor of unburned marijuana emanating from the unburned marijuana emanating from the car, not just a light odor. car, not just a light odor.

But, more specifically, each officer But, more specifically, each officer specifically testified that the odor of the specifically testified that the odor of the unburned marijuana was coming from the unburned marijuana was coming from the trunk trunk of the carof the car.

U.S. v. Foster, U.S. v. Foster, No.02-3859 (7/20/2004)No.02-3859 (7/20/2004)

““Accordingly, when the officers Accordingly, when the officers detected the smell of marijuana detected the smell of marijuana

coming from Foster’s vehicle, this coming from Foster’s vehicle, this provided them probable cause to provided them probable cause to

search the vehicle without a search the vehicle without a search warrant.search warrant. U.S. v. Elkins, U.S. v. Elkins, 300 300

F.3d 38 (6F.3d 38 (6thth Cir. 2002) This Cir. 2002) This therefore turned a lawful therefore turned a lawful Terry Terry

stop into a lawful search.”stop into a lawful search.”

Arizona v. Gant Arizona v. Gant (April 21, 2009)(April 21, 2009)

Police may search a vehicle incident to Police may search a vehicle incident to the arrest of an occupant ONLY in two the arrest of an occupant ONLY in two circumstances: circumstances:

1.1.when the arrestee is unsecured and when the arrestee is unsecured and within reaching distance of the within reaching distance of the passenger compartment at the time of passenger compartment at the time of the search (the safety rationale); or the search (the safety rationale); or

2.2.when it is when it is reasonable to believe reasonable to believe evidence relevant to the crime might evidence relevant to the crime might be found in the vehicle (the be found in the vehicle (the evidentiary rationale).evidentiary rationale).

U.S. v. Lopez, U.S. v. Lopez, 66thth Circuit (June 01, 2009) Circuit (June 01, 2009)

Defendant was not within reaching Defendant was not within reaching distance of his vehicle’s passenger distance of his vehicle’s passenger compartment at the time of the compartment at the time of the search, he was handcuffed in the search, he was handcuffed in the back seat of the patrol car by then. back seat of the patrol car by then.

No reason to think the vehicle No reason to think the vehicle contained evidence of the contained evidence of the offense of arrest, since that offense of arrest, since that offense was reckless driving. offense was reckless driving.

U.S. v. Lopez, U.S. v. Lopez, 66thth Circuit (June 01, 2009) Circuit (June 01, 2009)

““The 73 grams of crack cocaine, a set of The 73 grams of crack cocaine, a set of digital scales, and a Glock .40 caliber digital scales, and a Glock .40 caliber handgun loaded with ten rounds of handgun loaded with ten rounds of ammunition which formed the basis of his ammunition which formed the basis of his conviction for possession with the intent to conviction for possession with the intent to distribute and for carrying a firearm in distribute and for carrying a firearm in relation to a drug trafficking relation to a drug trafficking crime are crime are inadmissibleinadmissible. . Defendant’s conviction is Defendant’s conviction is vacatedvacated.”

U.S. v Vinton, U.S. v Vinton, D.C. (Feb. 5, 2010)D.C. (Feb. 5, 2010)

Maxima speeding with window tint Maxima speeding with window tint violation.violation.

Observed a law enforcement Observed a law enforcement “blue line” sticker on the car.“blue line” sticker on the car.

The officer asked Vinton if he worked The officer asked Vinton if he worked in law enforcement, and he replied in law enforcement, and he replied “personal security.”“personal security.”

Observed knife with a five and a half Observed knife with a five and a half inch sheath on the back seat.inch sheath on the back seat.


The officer asked Vinton what the The officer asked Vinton what the knife was for; he said he used it when he knife was for; he said he used it when he went fishing with his grandfather.went fishing with his grandfather.

The officer removed the knife from the car The officer removed the knife from the car and put it out of reach on Vinton’s roof and put it out of reach on Vinton’s roof and asked if there were any other and asked if there were any other weapons in the car.weapons in the car.

Vinton replied that there was not.Vinton replied that there was not.The officer returned to his police vehicle to write a citation.


The officer (with MPD) then returned to The officer (with MPD) then returned to Vinton and told him that he was going to Vinton and told him that he was going to search his car for weapons. search his car for weapons.

The officer again asked if there were any The officer again asked if there were any other weapons in the car and Vinton other weapons in the car and Vinton replied there was not. replied there was not.

The officer asked about weapons again The officer asked about weapons again and Vinton replied “not that I know of.” and Vinton replied “not that I know of.” The officer had Vinton exit his car and he The officer had Vinton exit his car and he handcuffed him, while telling him he was handcuffed him, while telling him he was not under arrest.not under arrest.

http://upload.wikimedia.org/wikipedia/commons/f/f9/US_Park_Police.jpg


Officer found a “butterfly knife” Officer found a “butterfly knife” under the front passenger-side floor mat, as under the front passenger-side floor mat, as well as 2 cans of mace and a bag of well as 2 cans of mace and a bag of Styrofoam earplugs; and a locked briefcase Styrofoam earplugs; and a locked briefcase that was on the backseat. “The briefcase that was on the backseat. “The briefcase isn’t mine”.isn’t mine”.

The officer then pried open the locked The officer then pried open the locked briefcase and searched it incident to arrest. briefcase and searched it incident to arrest.

Briefcase contained three bags of ecstasy, Briefcase contained three bags of ecstasy, three pistol magazines, a fighting knife, and three pistol magazines, a fighting knife, and a loaded .45 pistola loaded .45 pistol


The Fourth Amendment issues :The Fourth Amendment issues :

Whether the officer violated the Fourth Whether the officer violated the Fourth Amendment in conducting the limited Amendment in conducting the limited search (frisk) of Vinton’s vehicle for search (frisk) of Vinton’s vehicle for weapons?weapons?

Whether the officer had probable cause to Whether the officer had probable cause to arrest Vinton for the weapons charge that arrest Vinton for the weapons charge that led to the search incident to arrest?led to the search incident to arrest?

Whether the officer was justified under Whether the officer was justified under Arizona v. Gant to search the briefcase Arizona v. Gant to search the briefcase incident to incident to arrest?arrest?


An officer can order the driver out of his An officer can order the driver out of his car and conduct a limited search of the car and conduct a limited search of the passenger compartment for weapons if the passenger compartment for weapons if the officer has reasonable suspicion that the officer has reasonable suspicion that the driver is dangerous and may gain driver is dangerous and may gain immediate control of immediate control of weapons inside the car. weapons inside the car. Michigan v. LongMichigan v. Long


Based on the totality of the Based on the totality of the circumstances, the court held that the circumstances, the court held that the officer…officer…

……had a reasonable belief, based on had a reasonable belief, based on specific and articulable facts, that specific and articulable facts, that Vinton was armed and dangerous…Vinton was armed and dangerous…

Thus, he properly searched (frisked) Thus, he properly searched (frisked) the passenger compartment of Vinton’s the passenger compartment of Vinton’s car for car for additional weaponsadditional weapons..

http://upload.wikimedia.org/wikipedia/commons/f/f9/US_Park_Police.jpg


Since Vinton was handcuffed the search Since Vinton was handcuffed the search incident to his arrest cannot be justified incident to his arrest cannot be justified under the under the safetysafety rationale rationale from from Gant. Gant.

Thus, the court had Thus, the court had to consider whether the to consider whether the evidentiaryevidentiary rationale rationale from from Gant was met Gant was met during the search of briefcase.during the search of briefcase.

Since the officer had already found two Since the officer had already found two knives, two cans of mace, and ear plugs, it knives, two cans of mace, and ear plugs, it was reasonable to believe that additional was reasonable to believe that additional weapons might be found in the briefcase.weapons might be found in the briefcase.


““Because it was reasonable to believe Because it was reasonable to believe evidence relevant to the crime of evidence relevant to the crime of arrest might be found in the vehicle, arrest might be found in the vehicle, [the officer] had the right to search [the officer] had the right to search the passenger compartment of the passenger compartment of Vinton’s car and any Vinton’s car and any containers therein, containers therein, including the locked including the locked briefcase”briefcase”

Ohio v. Jones, Ohio v. Jones, 121 121 Ohio St. 3d (2009)Ohio St. 3d (2009)

““A law enforcement officer who A law enforcement officer who personally observes a traffic personally observes a traffic violation while outside the violation while outside the

officer’s statutory territorial officer’s statutory territorial jurisdiction jurisdiction has probable cause has probable cause to make ato make a traffic stop; the stop traffic stop; the stop is not unreasonable under the is not unreasonable under the

Fourth Amendment to the United Fourth Amendment to the United States Constitution.”States Constitution.”

Consent Search

11stst - The consent must be voluntarily - The consent must be voluntarily givengiven

Consent cannot be coerced, by Consent cannot be coerced, by explicit or implicit means, by implied explicit or implicit means, by implied threat or covert forcethreat or covert force

22ndnd – Person has authority over the – Person has authority over the place to be searchedplace to be searched

An individual may limit the An individual may limit the scope of any consentscope of any consent

U.S. v. Everett, U.S. v. Everett, April 06, 2010 6th April 06, 2010 6th

CIRCUITCIRCUITThere is no categorical ban on suspicionless, There is no categorical ban on suspicionless,

unrelated questioning that may minimally unrelated questioning that may minimally prolong a traffic stop. prolong a traffic stop.

The proper inquiry is whether the totality of The proper inquiry is whether the totality of the circumstances surrounding the stop the circumstances surrounding the stop indicates that the duration of the stop as a indicates that the duration of the stop as a whole – including any prolongation due whole – including any prolongation due to suspicionless, to suspicionless, unrelated unrelated questioning – was reasonable.questioning – was reasonable.

U.S. v. Everett, U.S. v. Everett, April April 06, 2010 ~ 6th CIRCUIT06, 2010 ~ 6th CIRCUIT

The overarching consideration is the The overarching consideration is the officer’s officer’s diligencediligence in ascertaining in ascertaining whether the suspected traffic whether the suspected traffic violation occurred, and, if necessary, violation occurred, and, if necessary, issuing a ticket. issuing a ticket.

Some amount of questioning Some amount of questioning relevant only to ferreting out relevant only to ferreting out unrelated criminal conduct is unrelated criminal conduct is permissiblepermissible. .

U.S. v. Hardin, U.S. v. Hardin, 66thth Circuit Aug 25, 2008Circuit Aug 25, 2008

Hardin out on parole was now wanted on Hardin out on parole was now wanted on new felony warrantnew felony warrant

Officer Kingsbury contacted landlord and Officer Kingsbury contacted landlord and told him of Hardin’s warrant and a 1990’s told him of Hardin’s warrant and a 1990’s shootout with policeshootout with police

Landlord agreed to enter apartment using Landlord agreed to enter apartment using a water leak as a rusea water leak as a ruse

Landlord was given consent to enter the Landlord was given consent to enter the apartment and saw a male that fit Hardin’s apartment and saw a male that fit Hardin’s descriptiondescription


Hardin abruptly arrested and firearm Hardin abruptly arrested and firearm found where he was sittingfound where he was sitting

Officer Turner, conducted a sweep of Officer Turner, conducted a sweep of the apartment’s other rooms and the apartment’s other rooms and found firearms in a shoebox under a found firearms in a shoebox under a bedbed


To demonstrate that a person was To demonstrate that a person was acting as an agent of the government: acting as an agent of the government:

““First, the police must have instigated, First, the police must have instigated, encouraged or participated in the encouraged or participated in the search” andsearch” and

““Second, the individual must have Second, the individual must have engaged in the search with the engaged in the search with the intent of assisting the police in intent of assisting the police in their investigative efforts.”their investigative efforts.”


In sum, because the officers urged the In sum, because the officers urged the apartment manager to investigate and apartment manager to investigate and enter the apartment, enter the apartment,

and the manager, …, had no reason or and the manager, …, had no reason or duty to enter the duty to enter the apartment, we hold apartment, we hold that the manager was that the manager was acting as an agent of acting as an agent of the government.the government.

U.S. v Taylor, U.S. v Taylor, (6th Cir. 2010)(6th Cir. 2010)

Officers received a tip that Taylor, a Officers received a tip that Taylor, a wanted fugitive, was staying in Arnett's wanted fugitive, was staying in Arnett's apartment.apartment. However, she allowed the officers to search. The officers found Taylor in a bedroom, wearing only his underwear.Arnett then gave verbal and written consent to a more thorough search. The officers did not seek consent from Taylor.


In a closet, officers found a shoe box In a closet, officers found a shoe box labeled for men's Nike shoes, covered by labeled for men's Nike shoes, covered by an item of men’s clothing. The officers an item of men’s clothing. The officers searched the box and found a weapon, searched the box and found a weapon, ammunition and Taylor's jail identification ammunition and Taylor's jail identification bracelet from his last stay in a county bracelet from his last stay in a county hospitality suite.hospitality suite.Should the court suppress the evidence found in the shoe box? Why?


Arnett would not reasonably appear Arnett would not reasonably appear to have authority over the shoe box. to have authority over the shoe box. The officers should have asked The officers should have asked further questions about control of the further questions about control of the room, closet and shoebox.room, closet and shoebox.

Ohio v. Smith, Ohio v. Smith, (Dec 15, 2009)(Dec 15, 2009)

Antwaun Smith was arrested on drug Antwaun Smith was arrested on drug charges after responding to cell phone call charges after responding to cell phone call made by a crack user acting as a police made by a crack user acting as a police informant. During the arrest, police informant. During the arrest, police searched Smith and found a cell phone on searched Smith and found a cell phone on his person. his person.

Later, police recovered bags containing Later, police recovered bags containing crack cocaine at the scene. crack cocaine at the scene.

Officers subsequently searched the Officers subsequently searched the contents of Smith’s phone without a contents of Smith’s phone without a search warrant or his consent. search warrant or his consent.


They discovered call records and stored They discovered call records and stored numbers that confirmed prior calls numbers that confirmed prior calls between Smith’s phone and the between Smith’s phone and the informant’s phone number. Smith was informant’s phone number. Smith was charged with possession of cocaine, charged with possession of cocaine, trafficking in cocaine, tampering with trafficking in cocaine, tampering with evidence and two counts of possession of evidence and two counts of possession of criminal tools. criminal tools.

Should the evidence obtained Should the evidence obtained from the cell phone be from the cell phone be suppressed?suppressed?


…when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances… police must obtain a search warrant for the phones data…

U.S. v. Washington, U.S. v. Washington, 66thth Circuit July 22, 2009 Circuit July 22, 2009

Wilson told Officer Rock that there were two people in the unit. She did not request his help or say they were trespassing.Officer Rock claims that his unspoken assumption at the time was that any visitors were trespassing because the landlord had previously told him that.At Officer Rock’s request, Wilson agreed to let the police search the apartment. Rock stated he did not believe she had the authority to consent to the search.


Washington was among those who were Washington was among those who were immediately visible, and he became immediately visible, and he became belligerent and told Rock that he was not belligerent and told Rock that he was not allowed in the apartment. allowed in the apartment.

Officer Rock testified that drug Officer Rock testified that drug paraphernalia in the living room was in paraphernalia in the living room was in plain view once he was inside the plain view once he was inside the apartment.apartment.


Officer Rock asked the defendant if he had Officer Rock asked the defendant if he had anything illegal in his possession.anything illegal in his possession.

““You can’t search meYou can’t search me.” Officer Rock .” Officer Rock informed Washington that he was informed Washington that he was suspected of criminal trespass and would suspected of criminal trespass and would be patted down. be patted down. (Good Frisk?)(Good Frisk?)

Washington then stated, “I’m dirty.” .357 Washington then stated, “I’m dirty.” .357 handgun and crack pipe.handgun and crack pipe.


Young’s landlord continued accepting rent Young’s landlord continued accepting rent after he discovered Washington lived on after he discovered Washington lived on the premises and after complaints of the premises and after complaints of possible drug activity in the apartment.possible drug activity in the apartment.

Did Washington have R.E.P. in his uncles Did Washington have R.E.P. in his uncles apartment?apartment?

Did Young’s failure to pay rent on a timely Did Young’s failure to pay rent on a timely basis in December 2006, the month of the basis in December 2006, the month of the search, diminish his, and Washington’s search, diminish his, and Washington’s R.E.P.?R.E.P.?


The landlord’s mere authority to The landlord’s mere authority to evict a person cannot of itself evict a person cannot of itself deprive that person of an objectively deprive that person of an objectively reasonable expectation of privacyreasonable expectation of privacy

A search of a home conducted A search of a home conducted without a warrant violates the Fourth without a warrant violates the Fourth Amendment with “only . . . a few Amendment with “only . . . a few specifically established and well-specifically established and well-delineated exceptions.”delineated exceptions.”


An ongoing criminal trespass, on its An ongoing criminal trespass, on its own, does not constitute an exigency own, does not constitute an exigency that overrides the warrant that overrides the warrant requirement.requirement.

Is there a “true Is there a “true immediacy” to immediacy” to forget the warrant forget the warrant requirement? requirement?

U.S. v. Brooks,U.S. v. Brooks, 6 6thth Circuit Feb 05, 2010 Circuit Feb 05, 2010

2 LEOs executing arrest warrantsBrooks indicted for trafficking months earlier answered the door and was arrested.Officers smelled a strong odor of marijuana smoke from the residence.Brooks indicated that he needed to put on a pair of shoes and Officer Rhoades accompanied Brooks to a bedroom to get shoes.


In the bedroom, Rhoades observed an In the bedroom, Rhoades observed an ashtray that contained marijuana seeds.ashtray that contained marijuana seeds.

Officers also conducted a patdown Officers also conducted a patdown search of Brooks and found $1,000 in search of Brooks and found $1,000 in cash in his back pocketcash in his back pocket

Officers took Brooks out of the residence Officers took Brooks out of the residence and froze the scene and obtained a and froze the scene and obtained a search warrant based on marijuana odor search warrant based on marijuana odor and seeds.and seeds.


Officers noticed scales and other drug Officers noticed scales and other drug paraphernalia items in plain view but paraphernalia items in plain view but failed to put that information into the failed to put that information into the search warrant.search warrant.

The district court found in favor of Brooks; The district court found in favor of Brooks; “the odor of marijuana and the presence “the odor of marijuana and the presence of marijuana seeds are, at best, evidence of marijuana seeds are, at best, evidence of a minor misdemeanor, for which Brooks of a minor misdemeanor, for which Brooks could not be arrested under Ohio law.” could not be arrested under Ohio law.”


The magistrate is not required to assume that the defendant has just smoked his last bit of marijuana immediately before the officers arrived. Instead, it is fairly probable under these facts that where there is smoke, there may be more there to smoke.

““Reasonableness” of the use of Reasonableness” of the use of force applied must be judged force applied must be judged from the perspective of the REASONABLE from the perspective of the REASONABLE OFFICEROFFICER

The test is one of The test is one of OBJECTIVE OBJECTIVE REASONABLENESSREASONABLENESS. Whether the . Whether the officers’ actions are “objectively officers’ actions are “objectively reasonable” in light of the facts and reasonable” in light of the facts and circumstances confronting them, without circumstances confronting them, without regard to their underlying intent or regard to their underlying intent or motivationmotivation

Graham v. Connor (1989)

USE OF DEADLY FORCEUSE OF DEADLY FORCE

The use of deadly force to prevent the The use of deadly force to prevent the escapeescape of ALL felony suspects, whatever of ALL felony suspects, whatever

the circumstances, is constitutionally the circumstances, is constitutionally unreasonableunreasonable

When a suspect poses no immediate When a suspect poses no immediate threat to the officer and no threat to threat to the officer and no threat to

others, the harm resulting from failing to others, the harm resulting from failing to apprehend him does not justify the use of apprehend him does not justify the use of

deadly force to do sodeadly force to do so

A police officer may A police officer may notnot seize an seize an unarmed, non-dangerous felony suspect unarmed, non-dangerous felony suspect

by shooting him by shooting him deaddead

USE OF DEADLY FORCEUSE OF DEADLY FORCE

Scott v. Harris, 2007

LIABILITY FROM VEHICLE LIABILITY FROM VEHICLE OPERATIONOPERATION

June 13, 2009

Moldowan v. City of Warren, Moldowan v. City of Warren, 66thth Circuit (July 01, 2009) Circuit (July 01, 2009)

All witnesses — police officers as well as lay All witnesses — police officers as well as lay witness — are absolutely immune from civil witness — are absolutely immune from civil

liability based on their trial testimony in liability based on their trial testimony in judicial proceedings. As with any witness, judicial proceedings. As with any witness, police officers enjoy absolute immunity for police officers enjoy absolute immunity for

any testimony delivered at adversarial any testimony delivered at adversarial judicial proceedings… no matter how judicial proceedings… no matter how

egregious or perjurious that testimony was egregious or perjurious that testimony was alleged to have beenalleged to have been

Law Enforcemnt EthicsLaw Enforcemnt Ethics

“…“…Police must obey the law while Police must obey the law while enforcing the law” because “in enforcing the law” because “in

the end, life and liberty can be as the end, life and liberty can be as much endangered from illegal much endangered from illegal methods used to convict those methods used to convict those thought to be criminals as from thought to be criminals as from

the actual criminals themselves.” the actual criminals themselves.” Spano v. New York,Spano v. New York, 360 U.S.315 (1959)360 U.S.315 (1959)

Date post:	25-Dec-2015
Category:	Documents
Upload:	owen-evans
View:	214 times
Download:	0 times

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The Fourth Amendment: The right of the people to be...

Documents