4th Amendment/Arrests/Search/Seizures

Basic Principles

Constitutional protections apply only to government action..

Two important exceptions

• Private persons acting as government agents

• Defense Counsel (both public and private) are treated as government actors for purposes of the Sixth Amendment with respect to effective assistance of counsel.

Public Place

Police can approach anyone in a public place, and unless the encounter escalates to a seizure there is no real constraint on what the police can do and no protection against what they discover (e.g., “tailing” a suspect, canvassing a neighborhood and asking questions).

Seizure

Occurs when an officer, by means of physical contact or show of authority intentionally terminates or restrains the person’s freedom of movement.

Example 5: Physical force—grabbing suspect by the arm, blocking ability to move, shooting a suspect.

Example 6: Show of authority—showing a badge and saying, “Stop!”

Test: Whether a reasonable person would feel free to disregard the officer

Example 7: Seizure—Ramming a suspect’s car in an attempt to stop the car.

Example 8: Not a seizure—Running over a third party while chasing a suspect

(because the officer did not intend to stop the third party)

Stop and Frisk/"Terry" Stop

An officer stops an individual when the officer has a reasonable suspicion, based on articulable facts, to believe the suspect is or is about to be engaged in criminal behavior.

Burden Hierarchy:

• Beyond a reasonable doubt → conviction

• Probable cause (“more likely than not”) → arrest

• Reasonable suspicion → stop

An officer’s reasonable mistake of law can give rise to reasonable suspicion.

During a Terry stop:

an officer can pat down a detainee for weapons but cannot frisk for evidence

• If the pat down reveals objects whose shape makes their identity obvious, the officer can seize those objects (i.e., it’s obvious that the objects are contraband).

• If probable cause develops during a Terry Stop, the officer can make an arrest.

Consequences of a stop that is not based on adequate suspicion:

• If the initial stop is unlawful, but the officer develops the basis for a lawful arrest during the stop, then evidence seized can be used at trial

• If the initial stop is unlawful, and no basis develops to make a lawful arrest, then evidence seized during the arrest cannot be used at trial

Traffic stops

• Officers must have reasonable suspicion to stop a car

• Once there is lawful stop, officers may pat down an occupant for weapons if they have reasonable suspicion that the person has a weapon.

• Checkpoints—Officers do not need reasonable suspicion to stop drivers if they pull over everyone.

Arrests

• There must be PROBABLE CAUSE to believe that the arrested individual has committed a crime.

• Can be with or without an arrest warrant

• Pretext arrest: As long as the police have probable cause to believe an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is probable cause or for some other crime.

Warrants

Authorizes an officer to arrest a particular person.

• An arrest warrant must:

• Be issued by a neutral and detached magistrate;

• Be based on a finding of probable cause to believe that the named individual has committed a particular crime; and

• Name the person and identify the offense

Once issued:

• Allows officers to enter an individual’s home to arrest that individual

• Does not authorize officers to enter a third party’s home or business

  • Must also have a search warrant to search the premises for the individual (or meet an exception to the warrant requirement)

Absent an arrest warrant, officers can only arrest someone inside a dwelling if:

a) There are exigent circumstances (e.g., felony hot pursuit or danger to others); or

b) There is consent to enter.

Exam Tip 1: In a question about an arrest with a warrant, the issue is whether

there was probable cause for the warrant.

Warrantless arrests

• An officer can arrest an individual without a warrant in a public place, either for a crime committed in the officer’s presence or based on probable cause to believe the individual committed a felony.

• If the crime was not committed in the officer’s presence, the officer can make an arrest

  only for a felony.

Example 11: You just robbed a bank (a felony) and fled the scene. An officer arrives and a witness describes you to the officer. The officer walks around the area and notices you because you perfectly match the suspect’s description.

The officer can arrest you because he has probable cause.

• An illegal arrest (because there was not probable cause) does not prevent prosecution for the crime. But it might result in the exclusion of evidence discovered during the arrest.

Searches Incident to Arrest

A lawful arrest permits the arresting officers to make a contemporaneous search of the person

arrested and the immediate surrounding area to:

• Protect officers from weapons or other danger; and

• To prevent the destruction or concealment of evidence

Any evidence discovered and seized during a search incident to a lawful arrest can be used against the person arrested.

• Arrest on the street: Can search the suspect and his wingspan.

• Arrest at home: Can search the suspect and his immediate area.

• Arrest in a car: May search passenger compartment of vehicle as long as the person/suspect still has access to the vehicle at the time.

• Officers cannot arrest a suspect, put him in the back of the squad car, and then go back and conduct a search of the car because the suspect is no longer a threat to officers and there is no longer a risk of destruction or concealment of evidence.

Editor's Note 1: But note that in the above scenario, officers may search the vehicle if it is reasonable that evidence of the offense of arrest might be found in the vehicle, even though the suspect is no longer a threat.

 Inventory search

When police arrest a driver and impound the car, it may be searched for inventory purposes.

Special rule for cellphones

During an arrest, officers may seize the suspect's cellphone, but cannot search the phone for digital information; police need a search warrant to search the phone’s digital information.

What is “Search”?

Occurs when government conduct violates a reasonable expectation of privacy.

Government Conduct

Can occur with physical intrusion upon private property

A search can occur without a physical intrusion.

• Using some types of technology constitutes a search.

Reasonable Expectation of Privacy

Places where we do have an expectation of privacy against the government:

• Houses

• Hotel rooms

• Office

• Luggage

• Curtilage

Places where we do not have an expectation of privacy against the government:

• Public streets

• Open fields (even private property)

• Garbage cans left on the street

• Abandoned property

Exam Tip 3: Be aware of who holds the reasonable expectation of privacy and who is claiming the search. The government’s actions are valid unless it is the defendant who has the reasonable expectation of privacy.

You have a reasonable expectation of privacy in your car, though it is more limited.

The Warrant Requirement

Generally, the government needs a search warrant to conduct a search if there is a reasonable expectation of privacy.

• Three requirements:

1) A search warrant must be issued by a neutral magistrate

2) Must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime.

3) Must describe the property and place to be searched with particularity

• If a warrant does not meet above requirements, the warrant is invalid, and the items seized pursuant to the warrant will be excluded from the prosecution’s case-in-chief.

• Wiretapping constitutes a search. Must have probable cause and a warrant, which must:

o Specifically identify whose conversations are to be intercepted

o Include an end date for the warrant

o Perform minimization

Exceptions to the Warrant Requirement: ESCAPES

o Exigent circumstances

o Search incident to arrest

o Consent

o Automobiles

o Plain view

o Evidence obtained from administrative searches

o Stop and frisk

Exigent Circumstances

o Officers are entitled to secure premises (i.e., prevent people from moving things) while they

obtain a warrant, but sometimes this is not sufficient.

o If officers are in “hot pursuit” or there is an immediate danger, they may conduct a search without getting a warrant first.

o This exception does not apply when police create the exigency.

o Absent exigent circumstances, police need a warrant for a DUI blood draw.

Search Incident to Lawful Arrest

o If the arrest is lawful, a search warrant is unnecessary in order to search the person being arrested and the immediate surrounding area (i.e., “wingspan”) for weapons or evidence.

o Officers may conduct a "protective sweep" for people if the arrest takes place in a home

Editor's Note 2: A search incident to arrest allows officers to search the immediate surrounding area for weapons or evidence. When the arrest takes place in a home, officers may also conduct a protective sweep, which allows a quick and limited visual inspection of immediately adjacent places where a

person might be hiding.

o Automobile—arrestee must be within reach of the passenger compartment to search it.

o DNA—samples may be collected as part of search incident to arrest.

o Cellphones cannot search digital contents.

Consent

o A defendant can consent to a search.

o Consent does not require the officer to warn the subject of his right to refuse.

o Consent can involve outright deception.

o Third Party Consent:

• Officers cannot search over the objection of a present occupant.

• Officers can search if the suspect is not present and the other occupant consents.

Automobiles

o Recall that police are allowed to conduct a warrantless search of an automobile incident to

arrest if the arrestee is within reach of the passenger compartment (and to conduct an

inventory search of an impounded vehicle).

o If police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle that might contain contraband, even without an arrest.

Plain View

If police are legally present, they can seize any item in “plain view” (or “plain smell”), even if that item was not named in the warrant.

Evidence Obtained from Administrative Search

o Police do not need search warrants to conduct administrative searches.

o Two kinds:

1) Administrative warrants (e.g., fire or health inspections of a building)

2) Warrantless administrative searches—used to ensure compliance with various

administrative regulations; examples:

• Airplane boarding areas

• International borders

• Highly regulated industries (liquor stores, gun shops, etc.)

• Searches of students in public schools

• Special-needs searches; e.g., drug testing of railroad employees after an accident

• Roadblocks for drunk driving or seeking information

Stop and Frisk

o Terry stops merely require reasonable suspicion

o May conduct a limited "frisk" for weapons