Constitutional Law

Arrest, Search, and Seizure

• Questions of arrest, search, and seizures generally fall into one of four categories:– Arrest with a warrant– Arrests without a warrant– Searches with a warrant– Searches without a warrant

Arrests with a warrant

• Victim signs a complaint

• An arrest warrant is issued

• Arrest warrants may be served day or night

• Gaining entry to serve an arrest warrant will depend on if the crime is misdemeanor or felony

• Felony warrants carry the authority to make a forced entry. (Payton v. New York)

• Misdemeanor warrants do not allow forced entry.

• Consider using other laws, hindering prosecution.

• Third party premises require a search warrant as well as the arrest warrant.

Arrests without a warrant

• Based on Probable cause

• Crime need not occur in the officer’s presence

• Applies to misdemeanors as well as felonies

• Majority of arrests are made this way

Searches with a Warrant

• Search is a governmental intrusion into a person’s reasonable and justifiable expectation of privacy

• Seizure is control by government over a person or thing

• Normally, searches must be conducted pursuant to a warrant

Search Warrant

• Application

• Affidavit

• Warrant

• Return / inventory

• 4th Amendment requirement-searches and seizures must be reasonable if a warrant is issued it must be:

• Based on probable cause

• Supported by oath or affirmation,

• Particularly describing what is to be searched for and seized.

Levels of Proof

An officer’s actions must be based on the law. The higher the level of proof the more intrusive the officer’s actions can be.

Suspicion – initiate an investigation

Reasonable suspicion – investigative detention

• Probable cause – arrest and or search

• Preponderance of evidence – civil verdict

• Proof beyond a reasonable doubt – guilty verdict in a criminal case

Probable Cause

• Facts or circumstances which cause a person of reasonable caution to believe that a crime is being or has been committed, or that evidence of a crime can be found in a particular place.

Probable Cause

• Probable cause exists where the facts and circumstances within the knowledge of the arresting officers, and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been or is being committed.

• (in the case of arrest warrants) or that property could be found in a particular place or on a particular person (in the case of search warrants). Carroll v. U.S. 267 U.S. 132 (1925)

How probable cause is established

• Officer’s knowledge of particular facts and circumstances or knowledge obtained by the officer.

• Use of the five senses; sight, hearing, smell, feel, (taste?)

• Officers may consider several factors when determining if PC exists:

Factors

• Suspect’s prior criminal record

• Flight from the scene

• Highly suspicious conduct

• Admission by the suspect

• Presence of incriminating evidence

• Resemblance of a suspect to a description of a perpetrator

Information provided by a third party (hearsay)

• Aguilar v. Texas. 378 U.S. 108 (1964)

• Established the “two pronged test”

• Established the credibility of the informant and;

• The reliability of the informant’s information.

Informant reliability

• Put their name in the affidavit

• Statement against penal interest

• Track Record

• Informant has given accurate information in the past

Reliability of the information

• Informant has seen the evidence or heard the statement recently

• Both “prongs” had to be satisfied.

• Police may “corroborate” the information, (Spinelli v. U.S. 1969)

• Use surveillance, record checks, utility bills, other informants

Illinois v. Gates

• 462 U.S. 213 (1983)

• Applied the “totality of the circumstances test” to probable cause,

• Magistrate must consider totality of the circumstances when deciding if probable cause exists

Searches without a warrant

• Searches conducted without a warrant are unreasonable unless they fall under on of the exceptions to the warrant requirement.

• The exceptions are:

• Search incident to a lawful arrest

• Vehicle (automobile)

• Stop and frisk

• Plain view seizure

• Consent

• Public school lockers

• Open fields

• Inventory / Impound searches

• Abandonment

• Hot pursuit

Search incident to arrest

• At the time of a lawful arrest officers may search the arrestee’s person and the area within his reach or “wingspan”

• Search must be contemporaneous with the arrest, delays must be reasonable

• Occupants of a vehicle

• The police may conduct a warrantless search of the passenger compartment of a vehicle (including its contents) after arresting the occupants. By definition the entire passenger compartment (glove compartment and console) are within the “wingspan” when that person is validly arrested in an automobile, even if he

• Could no longer reach into the interior compartment of the car when the search is undertaken (e.g. handcuffed) New York v. Belton, 453 U.S. 454, (1981)

• What about locked containers?

• The interior of the vehicle may be searched incident to arrest

• Trunk may not be searched incident to arrest

Vehicle searches

• Probable cause requirement: Before beginning any search at all under the automobile exception, the police must have probable cause to believe that a moving vehicle, or a temporarily stopped vehicle, contains the fruits, instrumentalities, contraband or evidence of crime.

• (Carroll v. U.S., 1925) Carroll Doctrine

Vehicle searches

• Vehicles may be searched without a warrant if the officer has probable cause to believe that evidence can be found inside.

• Lower expectation of privacy requirement: This exception applies only to automobiles, mobile homes, boats and airplanes, as to which the Supreme court has held that citizens have a lesser expectation of privacy than their homes, offices and personal property (e.g. luggage or a foot locker).

• The exception also applies to motor homes because they generally possess same attributes of mobility as automobiles (Ca. v. Carney, 1985)

• Mobility requirement: The exigency of the automobile’s mobility excuses the officer’s failure to secure a warrant and justifies the warrantless search of the entire automobile (interior compartment and trunk) Carroll v. U.S.

• Containers found in the vehicle: when the police have the probable cause to justify a warrantless search of the automobile they may search the entire car and open any packages or luggage found there which could reasonably contain the items for which they have probable cause to search (U.S. v. Ross)

• The “elephant in the matchbox” rule

• Search need not be contemporaneous: If the police could have conducted a warrant less search of the vehicle when the vehicle was stopped, the vehicle may be towed to the police station and searched at a later time. (Chambers v. Maroney, 1970).

Stop and Frisk

• Also called investigative detention or Terry Stops

• Level of proof required; reasonable suspicion

• Stop and frisk are two separate issues;

• Stop must be based on an articulable, reasonable suspicion

• Frisk must be based on a reasonable suspicion that a suspect may be armed and presently dangerous. Also called a “pat down” and is limited to checking for weapons. The frisk is limited to the outer clothing for weapons.

• “Plain feel rule” (Minnesota v. Dickerson)

• Terry v. Ohio (1968) Established standard for an investigative detention

• Adams v. Williams (1972) held that reasonable suspicion could be established by information provided by an informant

• U.S. v. Cortez (1981) applied the totality of the circumstances test for establishing reasonable suspicion

• Pennsylvania v. Mimms Stop for a traffic violation once a lawful stop of a vehicle has been made for a traffic violation the officer may order the driver out of the car for safety. Conversely they may order the occupants to stay in the vehicle.

• Michigan v. Long defined the “scope of the frisk” how extensive can it be?

• Whren v. U.S. dealt with pre textual stops (1996), as long as there is legal justification for the stop, even a minor infraction the stop is justified.

• Profiling is an old police practice.

Consent Exception

• General rule: A search may be conducted without a warrant if a voluntary and intelligent consent is given. (Schneckloth v. Bustamonte)

• Knowledge of the right to refuse is not required: it is not a prerequisite to proving that an intelligent consent has been given for the person giving consent to know of the right not to give consent. This is only a factor to be considered by the judge. (Schnekcloth)

• Scope of the search: the scope of the search may be limited by the scope of the consent. Consent may be revoked at any time in which case the search must stop.

• Capacity to consent: Any person with an equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other occupants. (Frazier v. Cupp, 1969, U.S. Matlock, 1974)

Plain view Seizures

• Prior lawful intrusion, including:• Car Stop• Entering a structure on another matter• Service of a warrant• Administrative duties• Inadvertent discovery• Item must be immediately recognized as the

fruits, instrumentalities, evidence of a crime or contraband

Abandonment

• Individuals have no expectations of privacy in items they discard

• Trash searches

• Motel rooms

• “Dropsy cases”

Inventory searches

• Sometimes called impound searches

• These searches are not for evidence

• When the officers seize an item they become an “involuntary bailee” which they are responsible for the item

• Inventory searches are to protect the officer, the department and the person whose property was seized

• Inventory searches must be conducted in the same way each time, usually pursuant to a department standard operating procedure (SOP).

• Usually occur when booking a prisoner or seizing a car in a DWI

Open Fields

• Persons have no reasonable expectation of privacy in an open field

• Open fields are areas outside the curtilage.

• Curtilage is an area for the exclusive use of the occupants

Other exceptions

• Public school lockers

• Hot pursuit

• Protective Sweeps