Introduction To Criminal Procedure Three major topics
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Scope of Terry Frisk: Generally limited to patdown of outer clothing for concealed weapons intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer. Cannot search under clothing – e.g. can’t unzip jacket and look inside BUT, officer may reach directly into an area of D’s clothing, such as his belt, without a preliminary frisk, if he has specific information that a weapon is hidden there even if information comes from informant’s tip lacking sufficient reliability to support a warrant Officer may reach into suspect’s clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon or contraband. But officer cannot manipulate items or packages inside the clothing to discern what it is/what’s inside. – Minn. v. Dickerson (1993) Duration and scope: To be valid under Terry, the investigatory stop must be relatively brief and in any event no longer than is necessary to conduct a limited investigation to verify the officer’s suspicions. Purpose of Terry frisk: Protect officer from arrestee who might be armed and dangerous Not general search for weapons Objective standard Purpose of the stop: crime prevention Standard for the seizure (stop): Reasonable suspicion that crime is afoot (reasonable suspicion less than probable cause) purpose: crime prevention Past crime also covered – Terry stop and frisk applies when officer seeks to investigate a completed felony. – Hensley (1985) Standard for the search: Reasonable suspicion that person is armed and dangerous looking only for weapons that could harm the officer purpose: protect officer Determining reasonableness of the search and seizure: Must look at whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Balancing Test: govt interest vs. individual’s interest Govt interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen, police officer must justify his intrusion w/ specific and articulable facts which, taken together w/ rational inferences from those facts, reasonably warrant that intrusion. Govt interest: officer safety, investigation vs. Individual interest: privacy Different levels of Reasonableness (of police action) – each requires different amount of proof to be valid Encounter vs. Terry stop vs. Arrest Reasonable Suspicion No specific definition by Court Requires something more than a vague suspicion e.g. not enough that detainee was in a crime-filled area – Brown v. Texas (1979) But less than probable cause Totality of circumstances to see if standard met Example – Reasonable suspicion justifying a stop is present when: a suspect who is standing on a corner in a high crime area flees after noticing the presence of police. Neither factor alone is enough to justify a stop, but together are sufficiently suspicious. – Illinois v. Wardlow (2000) Reasonable need not arise from a police officer’s personal knowledge (like PC) suspicion can be based on a flyer, a police bulletin, report from informant (Hensley, 1985) or information from private citizen (Adams v. Williams, 1972) Terry Holding: Search reasonable under 4th where police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons w/ whom he is dealing may be armed and dangerous, in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or other’s safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Terry Seizure (stop) vs. Arrests vs. Non-Seizure (encounter) Different levels of Reasonableness (of police action) – each requires different amount of proof to be valid Non-seizure / Encounter less intrusive and generally not 4th Amend. incident encounters on street between officers and individuals short term, temporary kind of stop when officer merely approaches person but does not detain her no arrest or investigatory detention has occurred reasonable person must believe she is free to leave reasonable suspicion not necessary for this encounter but some encounters can trigger 4th Amend. Terry Seizure / Stop some intrusion, investigatory measures probable cause not required only requires reasonable suspicion Police may use force in Terry stop – the more force used, the more likely it will be considered a full blown search and seizure requiring probable cause. Arrest greater intrusion requires probable cause this is full blown search and seizure Arrest It was a de facto arrest, not a Terry seizure, when police seized D without probable cause and took him to police station for interrogation. Dunaway v. N.Y. (1979) – Police violated the 4th Amend. when, without probable cause, they seized D and transported him to the police station for interrogation (did not have enough information for warrant and no probable cause to arrest him). This was a de facto arrest, not a Terry seizure, thus Terry does not apply. Police needed probable cause before they seized him. Seizures are reasonable only if supported by probable cause. There was reasonable suspicion, but it amounted to an arrest, not a Terry stop. Refused to extend Terry to a custodial arrest. Arrest when airport officers, acting without PC but with reasonable suspicion that D was drug courier, approached and IDed themselves, took him to small room for questioning, refused to give his ticket and ID back, until he consented to a search. Florida v. Royer (1983) – Airport officers thought D was acting like drug courier. They approached him, took his ticket and ID, told them they were narcotics officers, took him to small room w/o giving ticket and ID back, where he consented to a search. Held: This was an arrest – they needed probable cause, not just reasonable suspicion to do this. Terry Seizure – Stop in Automobiles If vehicle properly stopped for traffic violation, officer may order driver out of car even without a suspicion of criminal activity. – Mimms If officer has reasonable suspicion that the driver may be armed and dangerous, she may conduct a frisk. – Mimms Officer may search the vehicle, even if the officer has not arrested the occupant and has ordered the occupant out of the vehicle, provided the search is limited to those areas in which a weapon may be placed or hidden and officer possesses a reasonable belief that the occupant is dangerous. – Michigan v. Long (1983) If a driver is stopped for a ticket with a passenger in his car, officer may order passenger out of car too. – Maryland v. Wilson (1997) Mimms (1977) – Court balanced the competing interests and ruled that when an officer legally stops a driver on the highway, he may order the driver out of the car without further justification. Interest in police safety is legitimate and weighty. Driver’s interest, having been lawfully stopped, to be permitted to stay in his car. Intrusion of getting out of car is de minimis. Time limit for investigative stop No rigid time limit for length of investigative stop. Factors Court will consider to determine whether stop was too long: (Sharpe) purpose of the stop reasonableness of the time in effectuating the purpose reasonableness of the means of investigation Sharpe (1985) – Car and camper both pulled over, officer smelled marijuana in camper, held camper for 20 minutes before search. Held: This was valid Terry stop, authorized police to investigate. Police acted expeditiously, reasonably under these circumstances. Delay was attributable almost entirely to the evasive actions of driver of camper, who sought to elude the police as D moved his car to side of the road. Was decided by Terry, not by full custodial search. Whether police acted reasonably is case by case determination Terry Seizure – Person A person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained. – Mendenhall Seizure when, in view of all circumstances surrounding the incident, reasonable person would believe that she is not free to leave. – Mendenhall This requires a physical application of force by the officer or a submission to the officer’s show of force. Not enough that officer merely ordered the person to stop. – Cal. v. Hodari D. California v. Hodari D. (1991) – Police patrolling in “high-crime” area, saw 5 youths huddled around small car who then took flight after seeing police. D ran and just before police caught him, he tossed away package of cocaine. Issue: At time he dropped the drugs, was D seized? Held: With respect to a show of authority as with respect to application of physical force, a seizure does not occur even though the subject does not yield. An arrest requires either physical force or where that is absent, submission to the assertion of authority. Assuming that officer’s pursuit was a “show of authority” enjoining D to stop, since D did not comply w/ that injunction (i.e. he did not stop), he was not seized until he was tackled. They had no reasonable suspicion to seize him (by tackling him). Thus, the drugs he abandoned while running was not a fruit of the seizure and admissible. Non-Seizures No seizure when D stopped in airport by officers b/c they suspected she was drug mule. D was still free to end conversation and walk away. No seizure when D went to their office because she voluntarily consented to go there. Valid search b/c she gave valid consent to search in the office. U.S. v. Mendenhall (1980) – Woman stopped in Detroit airport b/c DEA agents thought her conduct was characteristic of those carrying narcotics. They asked for ticket, identified themselves as agents and she got nervous. She agreed to accompany them to DEA office in airport, and there agreed to search of her person and handbag and they found drugs on her. Held: A person has been seized within meaning of 4th Amend. only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. No seizure w/ agent’s initial approach on concourse; nothing in record indicates that D had any objective reason to believe she was not free to end the conversation in the airport concourse and go on her way. (Not a majority – only 2 justices thought it was seizure). No seizure w/ trip to DEA office b/c D voluntarily consented to accompany the officers to the DEA office. Search was valid b/c D’s consent to search was valid, it was free and voluntary. Very divided court: 2 justices – no seizure 3 justices – Terry stop based on reasonable suspicion 4 (dissent) – it was an arrest, full blown seizure Court must look to totality of circumstances when determining if seizure occurred. Absence of warning of search is not controlling factor. U.S. v. Drayton (2002) – Officers boarded bus and got permission from Ds to search their bags and their persons, found drugs on their persons after pat down search. Ds argue that the consent to the patdown search was invalid b/c police conduct was coercive and thus their consent was not voluntary. Held: Ds were not seized and their consent to the search was voluntary. Police did not seize Ds when they boarded the bus and began questioning passengers. Reasonable person would feel that they could still leave the bus to avoid the search. Ds were not subjected to unreasonable search; their consent to the suspicionless search was voluntary and thus reasonable. Police w/o reasonable suspicion may question anyone they want to. Terry: Reasonable Suspicion Generally Terry places some limits on it reasonable suspicion. Probable cause look at totality of circumstances probability, not certainty arrest - is there a fair probability that evidence of a crime will be found Reasonable suspicion Arrest – based on facts known to officer are sufficient to warn a person of reasonable caution would believe that person has or is about to commit a crime Search – based on facts known to officer are sufficient to warn a person of reasonable caution would believe that evidence will be found Reasonable suspicion that the what officer doing is appropriate – is officer acting how a reasonable officer would do in that situation Requires something more than a vague suspicion but less than probable cause Look at totality of circumstances Reasonable need not arise from a police officer’s personal knowledge (like PC) – suspicion can be based on a flyer, a police bulletin, report from informant (Hensley, 1985) or information from private citizen (Adams v. Williams, 1972) Reasonable suspicion is less demanding standard than PC; both are dependent upon both the content of information possessed by police and its degree of reliability. – White If source of suspicion of criminal activity is an informant’s tip, the tip must be accompanied by indicia of reliability sufficient to make the officer’s suspicion reasonable. Alabama v. White (1990) – Police got anonymous call telling that woman was carrying drugs, would be leaving specified apartment and delivering drugs to specified hotel. Police found her and followed her car, stopped her just short of hotel, for suspicion of carrying cocaine, she consented to search and they found the drugs. Issue: Was there reasonable suspicion to stop her in the car? Held: After observing that the informant had accurately predicted the suspect’s movements, it was reasonable for police to think that the informant had inside knowledge that the suspect indeed had drugs, thus justifying Terry stop. When police stopped D, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that D was engaged in criminal activity. Reasonable suspicion justifying a stop is present when: a suspect who is standing on a corner in a high crime area flees after noticing the presence of police. Neither factor alone is enough to justify a stop, but together are sufficiently suspicious. Illinois v. Wardlow (2000) – 4 police cars patrolling area for narcotics; police in last car saw D standing next to building holding bag; D ran after he saw police; police caught him and frisked him, felt hard object similar to shape of gun, then opened the bag and found gun. Issue: Was there reasonable suspicion for Terry stop? Held: There was reasonable suspicion for Terry stop. Police were justified in suspecting that D was involved in criminal activity and thus in investigating further. Efforts to flee plus other factors (totality of circumstances – that D was man, holding bag) contributed to finding of reasonable suspicion. Providing Identification As long as police have reasonable suspicion required to make a Terry stop, they may require detainee to ID himself (i.e. state his name) detainee may be arrested for failure to comply – Hiibel Hiibel dicta suggested that Court would recognize exception to this rule under 5th Amend. right against self-incrimination if by merely giving his name, detainee may incriminate himself, but it would be rare case. Hiibel (2004) – Properly crafted and enforced stop-and-identify laws are constitutional. Must be reasonable suspicion for officer to stop person and ask him to identify himself. 4th Amend. Terry stop allows officer to get name and address of person they are stopping. Court suggested that request for ID must be reasonably related to the reasons for stop. Extending Terry Protective Sweep of Premises Incident to lawful arrest, police may make protective sweep of the area beyond D’s wingspan (per Chimel) if they believe accomplices may be present. – Buie “Protective sweep” = quick and limited search of premises after arrest for other persons who might be hiding and dangerous to officers Purpose: To protect the safety of police officers or others – from “gunman in the closet.” Scope: Narrowly confined to a cursory visual inspection of those places in which a person might be hiding person who might be dangerous Automatic authority to look for others that might be dangerous NOT authority to look for evidence NOT full search of premises Lasts no longer than necessary to dispel the reasonable suspicion of danger, and no longer than it takes to complete the arrest and depart the premises. Maryland v. Buie (1990) – Police conducted “protective sweep” in D’s home after they arrested him for armed robbery; after he was placed under arrest, police kept searching for others in the home and found evidence that linked D to the crime. Held: Search was valid under protective sweep. Once D was found, the search for him was over, and there was no longer that particular justification for entering any rooms that had not yet been searched. However, arresting officers are permitted in such circumstances to take reasonable steps to ensure their safety after and during the arrest. That interest is sufficient to outweigh the intrusion such procedures may entail. Separates person’s house into 2 areas: area near the arrest – no reasonable suspicion or probable cause necessary broader entire house (rest of the house) – reasonable suspicion of danger – that someone else is in the house, they can search the rest of the house for that person only, not for evidence; but if they find something (evidence) in plain view, they can seize it. Personalty Police may briefly seize items upon reasonable suspicion that they are or contain contraband or evidence, but the seizures must be limited. Place – 90-minute detention of luggage reasonably suspected to contain drugs was unconstitutional. There is authority for short term investigatory hold on property. Here, 90-minute and Friday–Monday hold on luggage was too long; for that long a period officers needed probable cause. Possible scenarios where the 90-minute hold may have been valid: if police were investigating as quickly as they could in the 90 minutes if investigatory stop was okay, the dog sniffing ripened it to probable cause, and could not get a warrant from Fri.–Mon., then this 2 day hold probably ok Directory: wp-content -> uploads -> womenandlaw uploads -> For want of a nail uploads -> Police Militarization uploads -> Stop Militarizing Law Enforcement Act of 2014 uploads -> 2017 afoCo Landmark Scholarship Program uploads -> Instructions for the Preparation of Camera-Ready Contributions to the Conference Proceedings uploads -> Medical Radiography Program uploads -> Ihbb asian Championships 2014 middle school bowl Round 4 First Quarter uploads -> Ihbb european Championships 2014 Bowl Round 4 First Quarter womenandlaw -> Introduction – Chapter 1 (p. 2) and Chapter 2 (p. 13) womenandlaw -> Strict liability Download 1 Mb. Share with your friends:
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