arrest, search, and seizure block IV

probable cause = compromise

• public wants crime detection/prevention

• individual wants to be left along → privacy

probable cause to arrest

facts and circumstances within the officers knowledge and of which the officer had reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed or is being committed

probable cause to search

facts and circumstances within the officers knowledge and of which the officer has reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution in the belief that seizable property would be found in a particular place or on a particular person

probable cause State v. Le 2015

probable cause exists if, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at a specified location

probable cause - Ted Wilson and Tom Bridges

facts that show, more likely than not, something is located in a particular place or that a person committed a particular offense

probable cause is described as…

• “more likely than not”

• “fair probability”

Reasonable Belief (PC 1.07 (a)(42))

a belief that would be held by an ordinary and prudent man in the same circumstances as the actor

proof beyond a reasonable doubt PC 2.01

all persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. the fact that he had been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at trial

establishing P/C, What are the sources of P/C?

• personal observation

• police broadcast

• anonymous tip

• dog sniff

• officers opinion

• witness statement - named informant

• confidential informant

• statement against penal interest

• information from a pat down or frisk

establishing P/C, personal observation - sensory perception

• what you SEE

• what you HEAR

• what you SMELL

• what you FEEL

establishing P/C, officers opinion based upon

• personal observation

• training

• experience

establishing P/C

police broadcast

• existence of an arrest warrant

• suspect description - one ingredient

• vehicle description - one ingredient

establishing P/C

anonymous tip +

• considered less credible

• need more!!

• must be corroborated

establishing P/C Dog Sniff

• around a vehicle or container in public → OK

• but not within curtilage (i.e. front porch) of house

• can do no more than ordinary private citizen

  • Florida v Jardines (US 2013)

• DOG sniff on curtilage = search

establishing P/C

witness statement - named informant

• an eyewitness reporting a crime is inherently credible

• disinterested/nothing to gain/no motive to lie

• doing a civic duty by reporting

establishing P/C

confidential informant

• usually working off a case

• presumed to be unreliable

• need some other good reason to believe them

• examples - past performance or corroboration

establishing P/C

statement against penal interest

• Theory: wouldn’t incriminate yourself if it wasn’t true → statement is true

• statement must subject person to criminal liability

• blaming someone else wont qualify

establishing P/C

info from pat-down or frisk

• must be justified 1st by reasonable suspicion

• sense of touch → apparent if object felt is contraband or weapon

• AKA “plain feel”

establishing P/C

other facts used to build P/C

circumstances:

• time of day or night

• location

• proximity to crime scene

establishing P/C

other facts used to build P/C:

• suspects behavior

• abnormal demeanor

• furtive acts

• suspects statements (inculpatory? inconsistent?)

establishing P/C

other facts used to build P/C:

• possession of…

• …tools of the crime

• …fruits of the crime

• …contraband

establishing P/C

other facts used to build P/C:

• clothing worn by a suspect

• physical or mental condition of suspect

• scientific evidence such as fingerprints, DNA, blood alcohol content, drug field test, etc.

application of P/C

who decides whether P/C exists?

• initially, YOU do!

• DA will decide whether PC exists to file a charge when you call intake

• MAGISTRATE will decide whether PC exists to hold defendant within 24/48 hours of arrest

• GRAND JURY will decide whether PC exists to indict defendant

• JUDGE will decide whether PC existed for arrest/search

application of P/C

questions asked:

• is there probable cause to arrest?

• is there probable cause to search?

• is there probable cause to hold defendant in jail?

• is there probable cause to indict defendant?

• WAS there probable cause to search/arrest?

application of P/C

rules the court will use to apply P/C

• “totality of the circumstances”

• known to officer(s) at time of arrest/search

• info or evidence gathered later will not be used

• objective (reasonable person), not subjective (i.e. good faith) test

test: objective reasonableness, not subjective good faith (Beck v. Ohio 1964)

if subjective good faith alone (of probable cause) were the test, the protection of the fourth amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects only in the discretion of the police

Beck v. Ohio (SCOTUS 1964)

Officers received unspecified information and reports

about Beck who had a known gambling record and

stopped Beck on this unspecified information. They

placed him under arrest, searched his car even though no

arrest or search warrant. They found nothing in the car.

They took him to the station where they found clearing

house slips on his person which was illegal.

Beck v. Ohio (SCOTUS 1964) - outcome

no, there was no PC for his arrest having been shown and therefore no search incident to arrest

application of P/C

cannot use:

• personal biases and prejudices (i.e. racial profiling)

• hunches (inarticulate suspicions)

• uncorroborated anonymous tips of general info

reality:

• probable cause requirement is good at protecting privacy…

• …not so good at helping police detect/prevent crime

reasonable suspicion

→ can briefly detain person to determine if involved in a crime = “terry stop”

temporary detention is justified if officers can articulate a _____ that the person had committed a crime or is about to commit a crime (Terry v. Ohio)

reasonable suspicion

guidelines for reasonable suspicion

• conduct doesn’t have to ACTUALLY be unlawful; there might be an innocent explanation

• R/S must be based upon facts known at the time

• totality of all information known; don’t view each fact in isolation

• officers training and experience count in determining reasonableness

building R/S

• crime in progress

• danger to himself or others

• traffic offenses

• tips

• high crime area

• flight (a factor, but need more; i.e. from an officer)

• police broadcasts

not enough for R/S

• uncorroborated anonymous tip generally

• nervousness around officer

• flight (by itself)

• refusal to give name

legitimate actions for race

• can be used as one factor in a suspect description

• more advanced: race can be aspect of a criminal profile

• pretext stops with objective reason are legal regardless of the race of the driver

how long is “temporary”

• not hard and fast rule

• generally, no longer than necessary to investigate the objective reason for the stop

• if longer than necessary, stop may be considered an arrest and evidence can be thrown out

limitations on temp. detentions

• time - only as long as necessary

• movement - TCOLE says yes (but, be careful here)

• restraint - can briefly handcuff, secure in patrol car

• search - pat-down IF fearful for safety; can get consent

• force - can use reasonable force to invest, maintain status quo, or protect self

tips for conducting investigative detentions

• if investigation is not progressing further, end the detention

• if you want to ask questions, ask them before the purpose of the stop is complete

• if you want consent to search vehicle or person, ask for it before purpose of stop complete

reasonable detention or arrest can become an unreasonable one

• excessive force - more than is reasonably necessary

• longer detention than is necessary

• handcuffing too long

• body cavity searches without warrant (see art. 18.24)

articulation:

the key to preserving your stop/frisk

• what about this suspect caused you to suspect he may be involved in a crime?

• what about these circumstances suggest he’s connected to a potential crime?

• what about this suspect/these circumstances suggests he may be armed?

IF YOU CANT EXPLAIN RS/PC, YOU DONT HAVE IT!

circumstances justifying pat down

• sudden movement of suspects hands

• flight from officers in high-crime area

• prior knowledge that suspect owns or known to carry weapons

• non-exclusive list

scope of the pat-down

• can reach into clothing (i.e. belt) if have information weapon is there

• can search purses if believe weapon may be hidden in there

• can order driver or passenger out of car

vehicle weapon search under Long

under Terry, a search of the passenger compartment of an automobile, limited to those areas in which a weapon may be hidden, is permissible if the officer possesses a reasonable belief that justifies him in believing that the suspect poses a danger permitted to re-enter his automobile

vehicle weapon search under LONG elements:

• passenger compartment (only)

• areas where weapon could be hidden

• reasonable belief suspect poses danger if permitted to re-enter automobile

Matthew v. State CCA (2014)

• detention ok based on reasonable suspicion (tip, location, time of night, suspects behavior)

• frisk ok based on reasonable suspicion suspect was armed and dangerous

• search ok based on probable cause and because suspect abandoned the vehicle when he ran

plain feel, plain touch

elements:

• during lawful pat down

• officer feels object whose contour or mass

• makes its identity immediately apparent

• item can be seized without a warrant

plain feel, plain touch, what can you do

• cannot manipulate (i.e. squeeze, slide, open) the item to determine its identity

• once you determine item is not a weapon, must stop patting

• can use your knowledge and experience to support plain-feel seizure (i.e. matchboxes, crack pipe, was of money)

mere suspicion

a hunch or feeling of intuition. although intuitively knowing something is undoubtedly a skill that serves law enforcement officers well, mere suspicion is sufficient proof of any fact in a court of a law

U.S. v. Sokolow (SCOTUS 1989)

based on totality of circumstances, they had reasonable suspicion that criminal activity was afoot