Chapter 3 FOURTH AMENDMENT

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Chapter 3FOURTH AMENDMENT

• Detain
• Arrest
• Use of Force

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Language of Fourth Amendment

• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no Warrants shall issue, but upon
  probable cause, supported by Oath or affirmation,
  and particularly describing the place to be
  searched, and the persons or things to be seized.

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Overview of 4th Amendment

• Fourth Amendment only implicated if police
  seize the citizen.
• Two types of seizures
• Investigatory stop permitted on reasonable
  suspicion
• Arrest requires probable cause

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• Fourth Amendment only violated if seizure is
  unreasonable.
• Seizure is unreasonable if a) police lack
  adequate grounds for making the seizure b) if
  police fail to procure a warrant before making a
  nonconsenual entry into private residence to
  arrest someone or c) if police use excessive
  force to effect seizure

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• Unconstitutional seizure can
• Ruin innocent persons reputation
• Destroy admissibility of evidence (exclusionary
  rule)
• Lead to civil suit and sometimes, criminal
  prosecution

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Three legally significant police/citizen
encounters

• Voluntary encounter
• Investigatory stops
• Arrests

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Free Zone Investigation

• Voluntary police/citizen investigative encounters
  are not regulated by Fourth Amendment
• Suspect has not been seized
• No legally required level of suspicion necessary
• Evidence from voluntary cooperation is always
  admissible
• However, voluntary encounter can become a Terry
  stop

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Seizure Defined

• Under Fourth Amendment, suspect is seized if
  his liberty is restrained and brought under
  officers control through either
• 1) submission to show of legal authority, or
• 2) physical restraint
• Test is objective totality of circumstances
  from perspective of reasonable person in
  suspects position.

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Fourth Amendment Grounds for Lawful Seizure

• Correlation exists between degree of suspicion
  warranted by what officer knows and type of
  action 4th Amendment allows officer to take.
• 1) If nothing more than a hunch, investigation
  must be voluntary.
• 2) If there are articulable facts that justify
  reasonable suspicion that a person has committed
  a crime, is committing, or is about to commit a
  crime, officer has authority for temporary stop

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Contd.

• 3) If officer knows of facts sufficient to
  warrant a reasonable person to believe (not just
  suspect) that person is guilty of crime, officer
  may arrest based on probable cause.

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Similarities between reasonable suspicion and
probable cause

• Both involve assessment of suspects probable
  guilt.
• Both may be drawn from same sources of evidence
  includes personal observations, physical evidence
  at scene, info supplied by other law enforcement
  agencies/persons/records
• Judge uses same evaluation process for both. Two
  steps 1) determines what officer knew when he
  acted, then 2) judge weighs these facts

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Difference between reasonable suspicion and
probable cause

• Probable cause requires a higher probability of
  guilt.
• The higher probability must be based on more
  evidence or more reliable evidence

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Investigatory Stops

• Terry v Ohio Supreme Court ruled that officer
  who observed three men engaged in what appeared
  to be the casing of a store had reasonable
  suspicion, justifying the detaining of the men
  for brief questioning and also frisking them for
  weapons.

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Terry Stops

• There are three constitutional requirements for a
  lawful Terry stop
• Officer must be able to point to objective facts
  and circumstances that would justify a reasonable
  officer to link the detainees conduct with
  possible criminal activity.
• Officer must proceed with investigation
  expeditiously.
• Officer must stay within narrow investigative
  boundaries allowed for Terry stops.

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Reasonable Suspicion

• For reasonable suspicion standard, officer must
  possess objective grounds for suspecting person
  detained has committed, is committing, or is
  about to commit a crime.
• Reasonable suspicion requires more than a hunch,
  but less than probable cause.

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• None of the following factors is sufficient by
  itself to provide reasonable suspicion. However,
  these factors may be taken into consideration as
  part of the totality of circumstances in deciding
  whether suspect is engaged in criminal activity
• -Person looks suspicious but officer cant
  point to any facts that justify this conclusion
• - Person is spotted in area that has high
  incidence of crime
• -Person is known to have criminal record

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Contd.

• Person is in company of others who have criminal
  records or who are suspected of criminal activity
• Person is black, Hispanic, or some other race or
  ethnicity unless the suspects race or ethnicity
  matches description of offender or fits facts
  relevant to known offense.
• Person appears nervous or fails to make eye
  contact with the officer.

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• Whether facts known to officer provide an
  objective basis for reasonable suspicion is
  determined from vantage of trained police
  officer.
• Police are entitled to take criminal profiles
  into consideration in evaluating what they
  observe for reasonable suspicion purposes only if
  profiles serve to distinguish the suspects
  behavior from behavior one would ordinarily
  expect of a presumably innocent person in the
  vicinity.

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• Police may not act on information from members of
  public without independent corroboration unless
  they have a rational basis for believing the
  information is reliable.
• Information from known informant or citizen who
  identifies himself and reports activity he has
  witnessed in considered reliable and may be acted
  upon without corroboration.
• Information from anonymous tipster must be
  corroborated before police may act on it.

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Scope and Duration of Investigative Stops

• When police overstep lawful boundaries of
  investigatory stop, the stop automatically
  escalates into an arrest, violating suspects 4th
  Amendment rights
• There are only two authorized activities during
  an investigative stop
• Take protective measures to secure their safety
• Investigate circumstances that prompted the stop.

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What can police do under Terry for officers
protection?

• Order driver and passengers out of car.
• If reasonable suspicion the suspect may be armed
  or dangerous, conduct protective weapons frisk,
  or protective weapons search of car

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• a) weapons frisk limited to patting outer
  clothing.
• b) weapons search of vehicle limited to looking
  into areas of passenger compartment where weapon
  may be stored or hidden.
• c) may seize nondangerous contraband under plain
  feel doctrine

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Under Terry police have what authority?

• Ask for identification
• Question suspect
• Communicate with others to verify suspects
  explanation
• Run a check of police records
• Fingerprint suspect at the stop
• Bring in drug detection dog to for suspects
  luggage, vehicle or other property, if reasonable
  suspicion exists suspect is carrying drugs

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• 7) Transport suspect short distance to fresh
  crime scene for showup identification
• 8) Request consent for full-scale search,
  Breathalyer test, or any other procedure that is
  designed to further investigation.

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• Police should NOT do the following unless they
  have probable cause
• Take suspect against his will to police station
  (See Hays v Florida)
• Search suspect for nondangerous contraband
  without his consent

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• Police should avoid the following during a Terry
  stop
• Issue Miranda warning before they have developed
  grounds for an arrest
• Perform a weapons frisk without reasonable
  suspicion that detainee is armed or dangerous
• Transport detainee to second location unless
  necessary for officers safety or further the
  investigation.
• Display weapons, use handcuffs, place detainee in
  patrol car or perform other acts associated with
  arrest unless reasonably necessary for officer
  safety.

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Traffic and Vehicle Stops

• Stopping a motorist is always a seizure
• Probable cause is necessary to issue traffic
  citation or make a traffic arrest.
• Reasonable suspicion is necessary to conduct an
  investigatory traffic stop.
• An exception exists for checkpoints

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Vehicle Stops - Checkpoints

• Always a seizure
• Checkpoints must 1) Further a special need
  beyond normal need to control crime 2) Be
  authorized by supervisory-level police official
  3) Be operated under systematic procedures that
  eliminate discretion in selecting vehicles 4) Be
  conducted so as to minimize inconvenience to
  motorists

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Vehicle Stops Checkpoints, contd.

• Check drivers license, registration
• Sobriety checks
• Intercept escaped convicts and dangerous criminal
  traveling particular route
• Intercept illegal aliens
• Use informational roadblocks to seek
  information about recent crime-(Illinois v
  Lidster)
• BUT cant use checkpoints to bring in narcotics
  dogs

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Pretextual Traffic Stops

• Whren v United States As long as police have
  probable cause to believe traffic violation has
  occurred, their underlying motivation in
  conducting the traffic stop is immaterial.
• To have grounds, police must observe traffic
  violation or have probable cause or reasonable
  suspicion to believe violation has occurred.

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Illinois v Caballes, 2005 U.S. LEXIS 769

• One trooper walked a narcotics dog around car
  that was stopped for speeding while other officer
  wrote out warning ticket.
• Court held that 4th Amendment does not require
  reasonable suspicion to justify using drug
  detection dogs during a legitimate traffic stop.

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Consent Searches at Traffic Stops

• Ohio v Robbinette Issue was whether police,
  after returning drivers license during traffic
  stop, must in addition explicitly advise motorist
  that he is free to go in order for post-traffic
  stop interactions to be considered voluntary.
  Court refused to impose a per se requirement. It
  is voluntary if under the circumstances,
  reasonable motorist would feel free to drive
  away. See ex. On p. 123-124.

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Fourth Amendment requirements for Constitutional
Arrest

• 1) Two types of arrest
• Formal need a) communication of intent to
  arrest and b) seizure
• DeFacto arises by operation of law when police
  exceed boundaries of Terry stop.
• 2) Requires probable cause
• 3) Arrest warrant is mandatory only when police
  make nonconsensual entry into private residence
  to arrest person inside.

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Fourth Amendment requires probable cause for
arrest

• Devenpeck v Alford, 125 S Ct 588 (2004) (not in
  text). Probable cause that supports an arrest
  does not have to derive from the reasons stated
  as grounds for it. An arrest is valid, even
  though police lack probable cause to arrest
  person on stated grounds, if, based on facts
  known to them, they have probable cause to arrest
  person for any offense, even one that is
  completely unrelated.

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Two advantages of arrest warrant over arrest
without warrant

• Ensures evidence seized during arrest is
  admissible at trial.
• Immunizes police officer from civil suit

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Probable Cause

• An officer has probable cause to make arrest
  whenever the totality of facts and circumstances
  known to officer create a fair probability that
  a particular person is guilty of a crime
• Fourth Amendment requires probable cause for 4
  different purposes
• Warrantless arrest
• Issuance of arrest warrant
• Issuance of search warrant
• Warrantless search and seizure

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Fourth Amendment Requirements for Valid Arrest
Warrant

• Magistrate must make independent determination
  that probable cause exists
• Magistrates determination must be supported by
  affidavit
• Warrant must contain particularized description
  of person to be arrested.

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Affidavit

• Complaint and warrant in Michigan
• Information and belief
• Oath or affirmation
• Detached neutral magistrate
• Naming or describing a particular person
• Officer cannot draw conclusion

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Warrant Execution

• Anywhere in public
• Announce authority and purpose
• Search warrant for third party residence unless
• Consent
• Exigent circumstances
• Hot pursuit

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Arrests in Private Residences

• If person to be arrested resides in dwelling,
  only need arrest warrant
• If dwelling belongs to someone else, need search
  warrant and arrest warrant
• Houses, apartments, hotel rooms are considered
  private residences for 4th Amendment purposes.

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Knock and Announce

• Police must knock and announce before attempting
  forcible entry
• Warrant and/or knock and announce is excused if
  a) person of sufficient age who resides on
  premises grants permission to enter, b) hot
  pursuit or c) exigent circumstances
• Endanger lives
• Prevent suspect from escaping
• Destruction of evidence

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Use of Force

• 1) As little as necessary
• Safety
• Overcome resistance
• Prevent escape
• 2) Split second decision by police in rapidly
  evolving situations
• 3) Have force continuum

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Use of Force, contd

• Fourth Amendment regulates use of force during
  arrest or other seizure and imposes standard of
  objective reasonableness
• Eighth Amendment is operative after a conviction
  and protects prisoners from malicious and
  sadistic application of force
• Fourteenth Amendment due process regulates use of
  force during period after arrest and before
  conviction

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Deadly Force

• Tennessee v Garner
• Thus if the suspect threatens the officer with
  a weapon or there is probable cause to believe
  that he has committed a crime involving the
  infliction or threatened infliction of serious
  physical harm, deadly force may be used if
  necessary to prevent escape, and if where
  feasible, some warning has been given . . .

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State Arrest Laws

• Warrantless arrest authority 764.15
• Domestic violence arrest authority- 764.15a
• Injunctive arrest authority 764.15b
• Citizens arrest 764.16
• Time of arrest 764.17
• Warrant not in possession 764.18
• Forcible entry into building 764.21

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Jurisdiction

• Outside county - 764.2
• People v Hamilton, Mich Sup Ct.
• Working with police in another jurisdiction
  764.2a
• Fresh pursuit 780.101