Arrest, Search, and Seizure block I

Probable Cause for arrest

exists where the facts and circumstances within the officers knowledge, and of which they have reasonable trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that crime is being committed

probable cause to search

exists when “the facts and circumstances within their [the officers] knowledge and of which they had reasonable trustworthy information [are] 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]

the probable cause test

must show that the facts and the circumstances of the officers knowledge are sufficient enough to warrant a reasonable person to believe a suspect has committed, is committing, or is about to commit a crime

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 officers

mere suspicion

a hunch or the feeling of intuition. although intuitively knowing something is undoubtedly a skill that serves law enforcement officers well

mere suspicion IS

insufficient proof of any fact in a court of law

US v. Sokolow, 490 US 1 (1989)

reasonable suspicion is based upon the totality of the circumstances and is less burden that probable cause

Mapp v. Ohio (SCOTUS 1961)

• officer enters house without a warrant to, in part, find a suspect in the bombing of don kings house

• 4th amendment protections were incorporated into the due process clauses of the 14th amendment

• the result of this case extended the exclusionary rule to trials in state courts

Katz v. United States (SCOTUS 1967)

• the supreme court rules that the electronic “listening to” and recording of Mr. Katz’s conversation violated the privacy upon which he justifiably relied and thus constituted a search and seizure under the fourth amendment

• the court, in a concurring opinion, established a two part test for this right of privacy: (1) a person must exhibit an actual expectation of privacy, and (2) this expectation must be one that society recognizes as “reasonable”

Terry v. Ohio (SCOTUS 1968)

• the supreme court ruled that an officer may conduct a frisk when two conditions are present:

  • the investigatory stop must be lawful, based on reasonable suspicion that the person detained is committing, is about to commit, or has committed, a crime; and

  • to progress from a stop to a frisk, the officer must reasonably suspect that the person stopped is armed and dangerous

once a court has determined that a “seizure” has occurred without a warrant, that seizure must be characterized as either:

a detention of an arrest

a detention

requires reasonable suspicion

an arrest

requires probable cause

the exclusionary rule

any evidence seized as a result of a search or arrest determined to be unlawful will be suppressed and excluded in any hearing or trial of the person whose rights under the fourth amendment were violated

exclusionary rule and motions to suppress

motion filed by a defense attorney to try to prevent evidence from being used in court against the defendant

• the defense is seeking to show that law enforcements search and/or seizure was unreasonable under the 4th amendment, thereby making the evidence recovered as a result of the unreasonable search and/or seizure excluded from a trial or hearing

two-part test for a search

1. has the officer physically intruded on one of the areas (person, house, papers, or effects) protected under the 4th amendment

2. has the officer intruded on a reasonable expectation of privacy

seizure of a person

occurs when a person submits to an officers use of force or his “show of authority”

seizure of a property

occurs when an officer interferes meaningfully or significantly with another persons possessory interest in property

reasonableness

balance individuals right to be free and left alone with occasional need of law enforcement to interfere with privacy and freedom to investigate crime and enforce laws

motion to suppress evidence: a test of your conduct/procedures in an investigation. applies to evidence such as:

• defendants statement (written or oral)

• weapons recovered

• evidence taken by a defendant from a crime scene or victim

• evidence linking defendant to a crime scene

• or basically anything recovered from LE during an investigation

what are the types of police-citizen contacts

1. consensual encounters

2. investigative detentions

3. arrests

consensual encounters require

no objective justification

temporary detentions or investigatory stops requires

reasonable suspicion

arrests - with and without warrants requires

probable cause

consensual or voluntary encounters

the 4th amendment does not apply at all; thus, there is no requirement of probable cause; reasonable suspicion; or ANY suspicion

factors to consider when engaging in consensual encounters

• words

• tone of voice

• actions of officer

• use of miranda or 38.22 warnings

rationale for consensual encounters

• POs are as free to have voluntary conversations with people as the rest of us, so long as

• the PO does not coerce a persons cooperation, and

• a reasonable person would feel free in the situation to ignore the questions and walks away

• the 4th amendment does not apply

does the place or the setting matter for consensual encounters?

no:

• so long as the officer has a right to be in the place he is standing when the voluntary conversation occurs, the place itself does not matter

• sidewalk

• bus

• front porch

• inside residence

when does a consensual encounter become a detention?

• ONLY when the PO verbally, or non-verbally, conveys that compliance is required does an encounter become a detention

• this triggers 4th amendment protections against unreasonable searches and seizures

dropped items during a consensual encounter

if a person throws down or drops contraband during a consensual encounter, a police officer can retrieve it and it is not a “search” under the fourth amendment

California v. Hodari, U.S. Supreme Court 1991 - facts

a groups of males including Hodari fled when an unmarked police vehicle pulled up. POs were wearing jackets marked “police” (but did not shout stop) and began chasing on foot. Hodari runs but doesn’t see officer; officer cuts Hodari off who throws crack rock to ground

California v. Hodari, U.S. Supreme Court 1991 - issue,

at the time Hodari dropped the drugs, was he “seized” within the meaning of the fourth amendment?

California v. Hodari - outcome

• no. to constitute a “seizure” there must be either the application of physical force, however slight, or submission to an officers “show of authority” (chasing in full-uniform= sufficient show of authority, even without shouting ‘stop’.)

• without either compliance (submission) by suspect or physical contact by PO (force), there is no “seizure” here so the drugs are not suppressible

a seizure occurs when

• an officer uses force on a person with the intent to seize him, even if minimal force; or

• there is a sufficient show of authority that would lead a reasonable person to believe he was not free to leave and submits to the authority

what if the mere approach of a PO makes the person “uncomfortable”

is not alone sufficient to establish a seizure

test for when a consensual encounter becomes a “seizure” requiring reasonable suspicion or PC

only if viewing all the circumstances, a reasonable person would have believed he was not free to leave (Florida v. Royer USSCT 1983)

examples for when consensual encounter becomes a “seizure”

• threatening presence of several officers

• display of weapon

• some physical touch of the person

• use of language or tone of voice indicating compliance might be compelled

Florida v. Royer (SCOTUS 1983) - takeaway

in consensual encounters, peace officers are free to approach and ask questions of persons so long as officers recognize that those persons can refuse to identify themselves, refuse to cooperate, refuse to answer questions, and simply walk away

blacks law dictionary defines suspicion:

the act of imagining - or of doubt-the apprehension of something without proof, sight or on slight evidence

when does a consensual encounter turn into an investigative detention

• there is no bright-line rule

• courts will examine the totality of the circumstances to see if they indicate whether a reasonable person would have felt free to ignore the officers request or to terminate the consensual encounter

scope of detention

• investigative detentions must be reasonable in terms of the degree of intrusiveness required for the investigation

• courts look at whether the detention went beyond the time required for a diligent officer to accomplish the objective purpose of the stop

rationale behind the Terry v. Ohio case

court recognized that in order for POs to do their jobs effectively, officers will often encounter situations falling short of full blown arrest, but still require restriction of a persons movements for a short time to investigate a potential crime

temporary detention

resulting in the ability to hold a person for a limited time, but who as yet is not answerable for a criminal offense

Terry v. Ohio: created two major legal concepts

1. temporary detention

2. frisk for weapons

temporary detentions based on reasonable suspicion are…

OK

frisk or pat down over the clothes is…

OK, if you are further able to articulate why persons may be armed AND dangerous

what information is needed to show reasonable suspicion in “Terry v. Ohio”

1. some out of the ordinary activity is occurring or has occurred

2. the suspect is connected with the suspicious activity

3. the suspicious activity is related to a crime

how to articulate reasonable suspicion

1. activity out of the ordinary has occurred

2. the suspect is connected to it

3. that activity is related to a possible crime

no grounds for a terry stop

• if facts merely show that the person is odd

• or if the persons conduct is not sufficiently distinguishable from that of innocent people under the same circumstances

reasonable suspicion based upon articulable facts

• based on a collection of facts (which individually may appear innocent), when combined with training and experience show a reasonable inference that:

  • activity out of the ordinary

  • the suspect detained is connected to that activity

  • the activity is related to a possible crime

  • = (Terry Stop)

terry limits on the “frisk,” or pat down

• PO must be reasonably in fear for safety or the safety of others; and able to “articulate” or explain concern

• purpose - allow the PO to investigate without fear of violence

  • it is not intended to discover evidence

• can “pat down” the outer clothing, or personal articles such as a purse, in order to see if he/she has a weapon

• cannot conduct full blown search based only on reasonable suspicion

detain a person

that he is, has been, or is about to be involved in criminal activity

frisk a person

that he is subject to a lawful detention, is armed, and constitutes a danger to the officer

frisk an area

that an area within the immediate control and access of a person lawfully detained contains weapons and that the detainee might use those weapons against the officer

protective sweep

that other rooms or spaces in a place where an officer is lawfully present contains would-be assailants who would constitute a threat to the officer

sufficient reasonable suspicion

• crime in progress

• looking like a future burglar

• presenting a danger to himself or others

• flight from officers (maybe)

• high crime area (maybe)

• tips

  • corroborated

  • police broadcasts

insufficient reasonable suspicion

• uncorroborated anonymous tips

• nervousness around officers

• driving slower than the posted speed limit

• persons found in a high crime area

Navarette v. California (SCOTUS) (2014)

• 911 call

• detailed information about truck running another vehicle off the road

issue in Navarette v. California

whether the 4th amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle

Navarette v. California - outcome

SCOTUS says - based on the totality of the circumstances, the call had enough reliability to provided basis for reasonable suspicion

• 3 factors show reliability of anonymous tip

what are the 3 factors that show reliability of an anonymous tip

1. claimed eyewitness knowledge

2. provided contemporaneous report

3. called 911

reasonable suspicion from Derichsweiler v. State of Texas (CCA 2011)

• RS of person “soon to be” engaged in criminal activity is sufficient

• does not require particular and distinctively identifiable penal offense

what can you do during temporary detention

• interview the person

• frisk for weapons (if you can articulate they might be armed AND dangerous)

• can take person with you to check out a possible crime scene

• can keep person there for a reasonable period of time to satisfactory account for his account

Pennsylvania v. Mimms (SCOTUS 1977)

officers had already detained mimms to issue him a traffic ticket and asking him to exit the vehicle was a minimal and reasonable intrusion of his freedom

Maryland v. Wilson

after lawfully stopping a speeding vehicle, an officer may order its passengers to step out. while burdening their personal liberty somewhat, officers must be permitted such authority over passengers if the overriding governments interest in officer safety is to be protected

Arizona v. Johnson

Johnsons encounter with the officer was not consensual. the lawful traffic stop entails the “temporary seizure of the driver and passengers” that continues for the duration of the stop. Officers inquiries into matters unrelated to the stop do not transform the event into a consensual encounter whereby a passenger is free to go as he or she pleases. Therefore, officers who frisked Johnson were allowed to do so as long as they reasonably believed he was armed and dangerous

Tairon Monjaras v. State (1st district COA - Houston, July 27, 2021)

Johnson v. State (CCA 2021)

CCA held that reasonable suspicion is a relatively low hurdle and here based on the totality of the circumstances, viewed objectively and in the aggregate,  gave rise to reason to believe that something criminal had occurred, was occurring, or was about to occur

four conditions for an arrest

1. officers intent

2. must have authority

3. actual (physical) seizure of the person

4. suspects understanding

when is a person “arrested”, according to Art. 15.22, C.C.P

when he has been actually placed under restraint or taken into custody by PO or person executing a warrant of arrest or by PO or person without a warrant

officers intent

to take into custody must be conveyed to the suspect

must have authority

there must be facts giving probable cause to support the arrest

actual (physical) seizure of the person

the act of taking the suspect into custody by restraining movement either by physical force or by submitting to assertion of authority by obeying commands

suspects understanding

suspects being arrested must understand the situation, that the officers intention is to arrest him; or at least, a reasonable person in that position would recognize that he/she is under arrest