The Fourth Amendment

1
The Fourth Amendment

• Protects the peoples right to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures
• Requires that warrants to search places and to
  seize people and things must be supported by
  probable cause and must be issued on information
  given under oath or affirmation

2
Admissibility of Hearsay at Suppression Hearing
Before or During Trial

• Rule 104(a) (admissibility of evidence determined
  by court and court not bound by rules of evidence
  except for privileges)
• Rule 1101(b) rules of evidence, except for
  privileges, inapplicable when issue determined by
  court under Rule 104(a)
• Cases
• Brinegar v. U.S., 338 U.S. 160 (1949) Draper v.
  U.S., 358 U.S. 307 (1959) State v. Roberts, 276
  N.C. 98 (1970) Melton v. Hodges, 114 N.C. App.
  795 (1994)

3
Objective Standard in Evaluating Search or Seizure

• Reasonable person, innocent of criminal activity,
  in defendants position
• Officers subjective view of whether encounter
  was search, seizure, investigative stop, arrest
  is irrelevant
• Even if officers justification for investigative
  stop or arrest was invalid, it may be upheld if
  another justification existed
• Cases
• State v. Bone, 354 NC 1 (2001) State v. Peck,
  305 NC 734 (1982) US v. Analla, 975 F2d 119 (4th
  Cir. 1992) US v. Taylor, 956 F2d 572 (6th Cir
  1992) State v. Zuniga, 312 NC 251 (1982)
  Glenn-Robinson v. Acker, 140 NCApp 606 (2000)
  State v. Freeman, 307 NC 357 (1983) State v.
  Coffey, 65 NCApp 751 (1984).

4
Terry v. Ohio and later cases

• Terry v. Ohio 392 U.S. 1(1968)
• Frisk with reasonable suspicion is constitutional
• Justice Harlans concurring opinion on stop issue
• Adams v. Williams, 407 U.S. 143 (1972)
• Investigative stop and frisk based on informants
  information
• U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)
• Investigative stop of vehicle with reasonable
  suspicion
• Pennsylvania v. Mimms, 434 U.S. 106 (1977)
• Order driver out of lawfully-stopped car without
  any justification
• Delaware v. Prouse, 440 U.S. 648 (1979)
• Random stop of car on highway for license or
  registration is unconstitutional without
  reasonable suspicion
• Court appears to approve roadblock type license
  checks and weight station inspections
• Michigan v. Summers, 452 U.S. 692 (1981)
• Automatic authority to detain occupants of home
  while conducting search with search warrant, even
  if occupants outside home when officers arrive

5
Cases Based on Terry v. Ohio

• U.S. v. Place, 462 U.S. 696 (1983)
• Application of Terry to seizure of luggage with
  reasonable suspicion of drugs inside
• Seizure of luggage for 90 minutes to await drug
  dog was beyond scope of seizure based on
  reasonable suspicion
• Michigan v. Long, 463 U.S. 1032 (1983)
• Application of Terry to search car for weapons
  with reasonable suspicion
• U.S. v. Hensley, 469 U.S. 221 (1985)
• Application of Terry to stop of vehicle based on
  wanted flyer (for robbery) from another
  jurisdiction
• U.S. v. Sharpe, 470 U.S. 675 (1985)
• Length of investigative stop (20 minutes) was
  proper in this case
• Officers acted diligently
• Delay due partly to suspects evasive action
• Courts should not indulge in second-guessing

6
Cases Based on Terry v. Ohio

• U.S. v. Sokolow, 490 U.S. 1 (1989)
• Reasonable suspicion is based on totality of
  circumstances
• Consideration of drug profile
• Innocent facts
• Later case of United States v. Arvizu, 534 U.S.
  266 (2002)
• Michigan Dept. of State Police v. Sitz, 496 U.S.
  444 (1990)
• DWI roadblock is reasonable
• Minnesota v. Dickerson, 508 U.S. 366 (1993)
• Frisk for weapons plain feel is within plain
  view doctrine
• Whren v. United States, 517 U.S. 806 (1996)
• Officers motivation for stopping vehicle for
  traffic violation is irrelevant, if probable
  cause exists for violation
• Maryland v. Wilson, 519 U.S. 408 (1997)
• Officer who lawfully stopped vehicle may order
  passengers out of vehicle without justification

7
Cases Based on Terry v. Ohio

• Knowles v. Iowa, 525 U.S. 492 (1998)
• Search of vehicle is not permitted incident to
  stopping vehicle to issue citation to driver
• Illinois v. Wardlow, 528 U.S. 119 (2000)
• Defendants unprovoked flight on seeing officers
  and presence in heavy drug trafficking area
  provided reasonable suspicion to stop
• Terry v. Ohio accepts risk innocent people may be
  stopped
• Florida v. J. L., 529 U.S. 266 (2000)
• Anonymous tip insufficient to support reasonable
  suspicion to stop Alabama v. White,
  distinguished
• City of Indianapolis v. Edmond, 531 U.S. 32
  (2000)
• Checkpoint whose primary purpose is to detect
  illegal drugs is unconstitutional

8
Seizure of a Person

• Three levels of officers interaction with a
  person
• Interaction that does not constitute seizure
• Seizure that constitutes investigatory stop
  requiring reasonable suspicion
• Seizure that constitutes arrest requiring
  probable cause
• Definition of a seizure when a reasonable person
  would have believed that he or she was not free
  to leave
• Modification of definition under California v.
  Hodari D. (1991) and Florida v. Bostick (1991)

9
California v. Hodari D. (1991)

• 499 US 621, 111 SCt 1547, 113 LEd2d 690
• Officer chasing suspect, suspect drops object,
  and officer tackles suspect
• Seizure redefined
• Definition of seizure
• Applying actual physical force to suspect, or
• Suspect submitting to officers show of
  authority

10
Florida v. Bostick (1991)

• 501 US 429, 111 SCt 2382, 115 LEd2d 389 (1991)
• Officers boarding bus to ask consent to search
  for drugs
• Passengers are not automatically seized because
  officers boarded bus
• Court rejects free to leave standard in
  deciding this case
• Test reasonable person would feel free to
  decline officers requests or otherwise
  terminate encounter
• Reasonable person standard presupposes an
  innocent person

11
Factors in Determining Reasonable Suspicion

• Officers observations in light of officers
  training and experience
• Information received from others
• Time of day or night
• High-crime area?
• Suspects location to criminal activity
• Suspects reaction to and flight from officer
• Illinois v. Wardlow, 528 U.S. 119 (2000)
• Officers knowledge of suspects past
• Suspects matching profile of criminal behavior

12
Whren v. United States (1996)

• Facts traffic stop by drug officers
• Is pretextual stop unreasonable under Fourth
  Amendment?
• Ruling When probable cause for traffic
  violation officers motivation for making stop
  is irrelevant under Fourth Amendment
• Reasonable suspicion for traffic violation U.S.
  Knights, 534 U.S. 112 (2001) U.S. v. Dumas, 94
  F.3d 286 (7th Cir. 1996)
• Stop for improper racial purpose analyze only
  under Equal Protection Clause of Fourteenth
  Amendment
• Motivation is relevant for following DWI or
  license checkpoint, inventory search, or
  administrative search, which are not based on
  probable cause or reasonable suspicion
• City of Indianapolis v. Edmond, 531 US 32 (2000)
• State v. McClendon, 350 NC 630 (1999) State v.
  Hamilton, 125 N.C. App. 396 (1997) State v.
  Morocco, 99 N.C. App. 421 (1990)

13
Drivers License and Impaired Driving Checkpoints

• Delaware v. Prouse, 440 U.S. 648 (1979)
• Michigan Dept. of State Police v. Sitz, 496 U.S.
  444 (1990)
• City of Indianapolis v. Edmond, 531 U.S. 32
  (2000)
• State v. Sanders, 112 N.C. App. 477 (1993)
• State v. Barnes, 123 N.C. App. 144 (1996)
• State v. Grooms, 126 N.C. App. 88 (1997)
• State v. Foreman, 351 N.C. 627 (2000)
• State v. Tarlton, 146 N.C. App. 417 (2001)
• State v. Colbert, 146 N.C. App. 506 (2001)
• G.S. 20-16.3A

14
Alabama v. White (1990)

• 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301
• Reasonable suspicion to make investigative stop
  vehicle for drugs
• Anonymous telephone tip
• Amount of detail in tip
• Anonymous callers prediction of future events
• Anonymous information and law enforcement
  corroboration
• Sufficient indicia of reliability

15
Florida v. J.L. (2000)

• 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254
• Anonymous telephone call
• Young black male standing at bus stop, wearing
  plaid shirt, and carrying gun
• Officers go to bus stop and see male person
  matching description
• Male person makes no threatening or unusual
  movements
• Officer stops and frisks him
• Courts ruling information was insufficient to
  support stop and frisk
• Court distinguished rulings in Alabama v. White
  (1990) and Adams v. Williams (1972)

16
Anonymous Information and Reasonable Suspicion

• Pure anonymous telephone caller
• Anonymous caller giving some information about
  him or her
• Officers in-person contact with unknown person
• Basis of sources knowledge
• Direct observation?
• Amount of detail given
• Reporting past or present criminal activity
• Prediction of future behavior
• Corroboration by law enforcement officer
• Need for immediate law enforcement
  responsereport of person carrying bomb erratic
  driving on highway shooting in house

17
Anonymous Information

• State v. Hughes, 353 N.C. 200 (2000) (drugs
  insufficient)
• State v. Bone, 354 N.C. 1 (2001) (murder
  sufficient)
• State v. Brown, 142 N.C. App. 332 (2001) (drugs
  insufficient)
• State v. Young, ___ N.C. App. ___ (2/5/02) (armed
  robbery sufficient)
• State v. Allison, ___ N.C. App. ___ (2/19/02)
  (armed robbery sufficient)
• US v. Wheat, 278 F3d 722 (8th Cir. 2001)
  (reckless driving stop sufficient)

18
What Constitutes Reasonable Suspicion State Cases

• State v. Butler, 331 N.C. 227 (1992)
• State v. Fleming, 106 N.C. App. 165 (1992)
• State v. Foreman, 351 N.C. 627 (2000)
• State v. Bonds, 139 N.C. App. 627 (2000)
• Reference to NHTSA website information
• State v. Watson, 122 N.C. App. 596 (1996)
• State v. Battle, 109 N.C. App. 367 (1993)
  (collective knowledge)

19
Length of Time to Conduct Investigative Stop

• Whether officer diligently pursued means of
  investigation likely to confirm or dispel
  suspicions quickly
• But courts generally should not second-guess
  whether officer should have used alternative
  investigative means
• Suspects reaction to officers stop
• Officers need to adjust response to what is
  happening
• Seriousness of crime
• Nervousness of suspect
• Stopping vehicles license registration check
  motor vehicle and criminal record check
• Need to investigate other violations of law
• Cases U.S. v. Sharpe, 470 U.S. 675 (1985) U.S.
  v. Place, 462 U.S. 696 (1985) State v. Jones, 96
  N.C. App. 389 (1989) State v. Morocco, 99 N.C.
  App. 421 (1990) State v. Aubin, 100 N.C. App.
  628 (1990) State v. Hunter, 107 N.C. App. 402
  (1992) Rousselo v. Starling, 128 N.C. App. 439
  (1998) State v. Falana, 129 N.C. App. 813
  (1998) State v. McClendon, 350 N.C. 630 (1999)
  State v. Fisher, 141 N.C. App. 448 (2000) State
  v. Munoz, 141 N.C. App. 675 (2001)

20
Scope of Investigative Stop

• U.S. v. Shabazz, 993 F.2d 431 (5th Cir. 1993)
• Questioning unrelated to investigative stop are
  permissible unless they prolong stop
• During traffic stop, officer asks Are any drugs
  or weapons in your car?
• Other cases U.S. Holt, 264 F.3d 1215 (10th Cir.
  2001) U.S. Childs, 277 F.3d 947 (7th Cir. 2002)
• State v. Kincaid, 147 N.C. App. 94 (2001)
• Questioning about another matter after traffic
  stop completed was permissible when defendant
  consented to questioning
• Asking consent to search during stop
• Ohio v. Robinette, 519 U.S. 33 (1996)
• Asking consent to search after valid detention
  has ended
• Specific warning (you are free to go) is not
  required

21
Investigative Techniques During Investigative Stop

• Ordering driver and passengers out of vehicle
• Ordering them to stay in vehicle
• Using force
• Blocking suspects car with officers cars
• Drawing weapon on suspect
• Making suspect lie on ground
• Handcuffing suspect
• Questioning
• State v. Benjamin, 124 N.C. App. 734 (1996)
  (Miranda warnings not required)
• Moving suspect for safety and security reasons or
  for identification by victim

22
Frisking People for Weapons

• Reasonable suspicion of danger is generally
  required
• Exception dangerous crimes or crimes, such as
  drug trafficking, associated with possession of
  firearms
• Exception execution of search warrant in
  nonpublic place
• Factors in determining reasonable suspicion
• Kind of crime for which person was stopped
• Information from others that person armed and
  dangerous
• Behavior of person to be frisked
• Bulge in suspects clothing or observation of
  object there
• Suspects prior criminal record and history of
  dangerousness
• Objective testofficers subjective beliefs
  irrelevant
• Arrest of person and whether frisk of companions
  is automatically permissible

23
Frisking People for Weapons

• Cases
• State v. Pearson, 348 NC 272 (1998)
• State v. McGirt, 345 NC 624 (1997), affirming,
  122 NC App 237 (1996)
• Scope of frisk
• Plain feel rationale under Minnesota v.
  Dickerson, 508 US 366, 113 S Ct 2130, 124 LEd2d
  334 (1993)

24
Plain Touch (Feel) Doctrine Minnesota v.
Dickerson (1993)

• Officer must have justification to touch (feel)
  person or object
• Officers authority to frisk person for weapons
• Officer may not exceed scope of justification
  when touching (feeling) person or object
• Exceeding scope of frisk for weapons
• Incriminating character of object must become
  immediately apparent to officer
• Immediately apparent is equivalent to probable
  cause
• Cases State v. Beveridge, 112 N.C. App. 688
  (1993), affd per curiam, 336 N.C. 601 (1994)
  State v. Briggs, 140 N.C. App. 484 (2000) (felt
  cigar holder in defendants pockettotality of
  circumstances) State v. Wilson, 112 N.C. App.
  777 (1993) State v. Whitted, 112 N.C. App. 640
  (1993) In re Whitley, 122 N.C. App. 290 (1996)
  State v. Benjamin, 124 N.C. App. 734 (1996)
  (What is that during frisk not subject to
  Miranda)

25
Search Incident to Arrest of Vehicle Occupant

• Must be arrest writing citation is insufficient
• Knowles v. Iowa, 525 US 113 (1998)
• State v. Fisher, 141 NCApp 448 (2000)
• New York v. Belton, 453 US 454 (1981)
• Arrest of vehicle occupant
• Removal of occupants permitted before search
• Entire interior of vehicle
• Containers within interior of vehicle
• Cases State v. Vancamp, ___ NCApp ___ (5/21/02)
  State v. Andrews, 306 N.C. 144 (1982) State v.
  Cooper, 304 N.C. 701 (1982) State v. Clyburn,
  120 N.C. App. 377 (1995) State v. Massenburg, 66
  N.C. App. 127 (1984)

26
Search Incident to Arrest of Vehicle Occupant

• Other occupants
• Excludes trunk of vehicle, based on this
  justification

27
Other Permissible Searches or Seizures Without
Probable Cause

• Vehicle frisk for weapons based on reasonable
  suspicion
• Michigan v. Long, 463 U.S. 1032 (1983) State v.
  Braxton, 90 N.C. App. 204 (1988)
• Impoundment and inventory of vehicle
• South Dakota v. Opperman, 428 U.S. 364 (1976)
  Colorado v. Bertine, 479 U.S. 367 (1987) Florida
  v. Wells, 495 U.S. 1 (1990) State v. Phifer, 297
  NC 216 (1979) State v. Peaten, 110 NCApp 749
  (1993)
• Pretext may be an issue
• Community caretaking function
• Cady v. Dombrowski, 413 U.S. 433 (1983)
• Checking VIN on vehicle
• New York v. Class, 475 U.S. 106 (1986)
• Protective sweep of home
• Maryland v. Buie, 494 U.S. 325 (1990)
• Warden v. Hayden, 387 U.S. 294 (1967)

28
Is There Custody under Miranda During
Investigative Stop?

• State v. Benjamin, 124 N.C. App. 734 (1996)
• Berkemer v. McCarty, 468 U.S. 420 (1984)