Arrests, Searches, & Seizures

What are the two purposes of the Bill of Rights?

1. Ensures individual rights of citizens

2. Protects against federal government actions

What is the 4th 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.

What is the purpose of the 4th amendment to the US Constitution? (simplified)

to guarantee rights related to arrests, searches, and seizures of persons

What is the 4th amendment guided by?

current case law & court decisions

What is reasonable expectation of privacy? (REP)

protects areas where people have this

What is the two part analysis developed in the US Supreme Court regarding reasonable expectation of privacy?

1. Katz v. US (1967)

2. Public v. private area conversations

Katz v. US (1967)

Case: Charles Katz was using a public phone booth in Los Angeles to place illegal gambling bets across state lines. The FBI secretly attached a listening device to the outside of the phone booth and recorded his conversations without physically going inside the booth, and those recordings were later used against him in court.

Holding: held that police violated the Fourth Amendment when they wiretapped a public phone booth without a warrant because the Constitution protects a person’s reasonable expectation of privacy, not just physical places

Search Definition Test 2 Parts:

1. Government intrudes into area of REP AND

2. Done for purpose of obtaining evidence

What constitutes as common areas & situations?

1. person

2. vehicles

3. homes & curtilage

4. containers

Does ownership justify reasonable expectation of privacy?

No

What are the two exceptions of reasonable expectation of privacy?

1. Any unoccupied or undeveloped area outside of a home’s curtilage

   1. Even when fenced & “no trespassing” is posted

   2. Doesn’t need to be an open field

2. No REP in abandoned property

1. Trash pulls

What is a search?

A governmental intrusion into a person’s reasonable expectation of privacy for the purpose of finding evidence, contraband, or information

Jones v. US (USSC 2012)

Case: police suspected Antoine Jones of drug trafficking and secretly attached a GPS tracking device to his vehicle to monitor his movements for several weeks. Investigators used the GPS data to track where he traveled and later used that information as evidence in the criminal case against him

Holding: held that police violated the Fourth Amendment by attaching a GPS tracking device to a suspect’s vehicle without a valid warrant and monitoring the vehicle’s movements

Search Definition Test 2 Parts:

1. Physical intrusion on protected area AND

2. Intent to gather information

Mendenhall v. US (USSC 1980)

Case: DEA agents approached Mendenhall in an airport, asked for her identification and ticket, questioned her, and later obtained consent to search her, where heroin was found.

Holding: The Supreme Court ruled that no seizure occurred because a reasonable person in her situation would have felt free to leave, creating the “free to leave” test for determining a seizure under the Fourth Amendment.

Summary: A person is seized only when an incident a reasonable person would believe they are not free to leave

1. Includes taking of:

   1. Contraband 

   2. Evidence of a crime

   3. Person in custody

What are the two types of seizures?

1. limited seizure

2. full seizure

What is a limited seizure?

An investigatory detention based on reasonable suspicion that has strict parameters on length & scope of the stop

What is a full seizure?

Arrest based on probable cause

What is the order of the four degrees of suspicion from lowest to highest?

1. Hunch

2. Reasonable Suspicion

3. Probable Cause

4. Proof Beyond a Reasonable Doubt

What are the two degrees of suspicion that are used to justify 4th amendment intrusions?

1. Reasonable suspicion

2. Probable cause

What is the response permitted by the Constitution for a hunch?

Interactions must be consensual

What is the response permitted by the Constitution for a reasonable suspicion?

Suspect may be seized & detained for a brief investigation (*totality of the circumstances*)

What is the response permitted by the Constitution for probable cause?

Suspect may be arrested

What is the response permitted by the Constitution for proof beyond a reasonable doubt?

Suspect may be convicted of the crime & punished

What are the four purposes of the probable cause requirement under the 4th Amendment?

1. Obtain an arrest warrant

2. Make an arrest without a warrant

3. Obtain a search warrant

4. Conduct some searches without a warrant

Probable Cause

Exists when a reasonably prudent person would believe that the person to be arrested has committed a crime or that the place to be searched contains evidence of a crime

What did the USSC require a judge to issue before a seizure is made?

warrant

What are the two types of probable cause?

1. probable cause to arrest

2. probable cause to search

Probable cause to arrest deals with ______ where probable cause to search deals with __________.

1. acts (to commit the crime)

2. evidence (of interests in a location)

What are the two categories of probable cause?

1. observational probable cause

2. informational probable cause

Observational Probable Cause

1. Perceived through natural senses

2. Experience, training, & expertise of the officer may lend credibility to the officer’s establishment of PC

Informational Probable Cause

1. Officers don’t observe the crime often, we rely on given information

2. Sources: dispatch, wanted notices, & APB

3. Witnesses, victims, & police informants will require some level of corroboration for it to be deemed reliable

What are the three main types of interactions between police & public?

1. consensual encounters

2. investigatory stops

3. arrests

Consensual Encounters

A brief, voluntary encounter between police & citizens where a reasonable person would feel like they are able to leave at any point (ex. Consensual walk & talk)

In consensual encounters, do police officers need to inform subjects that they don’t have to answer them or that they are free to leave?

No

In consensual encounters, can police officers ask incriminating questions?

Yes

When is a person considered seized?

When, in view of all the circumstances surrounding the incident, a reasonable person would believe that the person was not free to leave

What are some of the USSC-listed examples of circumstances that might indicate seizure even when the person did not attempt to leave the area?

1. Threatening presence of several officers

2. Display of weapon by an officer(s)

3. Physical touching of the person

4. Restricting the subject’s freedom of movement

5. Use of language or tone of voice that indicates that compliance with the officer’s request might be compelled

6. Manner of questioning

California v. Hordari D. (USSC 1991)

Case: Police officers chased Hodari after he ran from them, and during the pursuit, he threw away what appeared to be crack cocaine before being physically tackled and detained.

Holding: The Supreme Court held that a seizure does not occur unless police use physical force or a person submits to an officer’s show of authority, so Hodari was not seized when he discarded the drugs.

Why does it matter if he was seized?

1. If he were seized, it would be unreasonable & the drugs would be inadmissible

2. If he was not seized, the drugs were abandoned & lawfully recovered by law enforcement

Florida v. Bostick (USSC 1991)

Case: Police officers boarded a bus and asked Bostick for consent to search his luggage, where they found cocaine.

Holding: The Supreme Court held that a police encounter on a bus is not automatically a seizure, and the proper test is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.

Drayton v. US (USSC 2002)

Case: Police officers boarded a bus during a drug interdiction effort and asked passengers, including Drayton, for consent to search their bags and persons, leading to the discovery of drugs.

Holding: The Supreme Court held that no seizure occurred because the officers did not use coercion or force, and passengers would have reasonably felt free to refuse consent or end the encounter.

Peters v. US (6th Circuit 1999)

Case: Federal officers arrested Peters without a warrant after suspecting he was involved in illegal activity and searched him incident to the arrest, finding incriminating evidence.

Holding: The Supreme Court held that officers may conduct a search incident to a lawful arrest without a warrant to protect themselves and preserve evidence.

Investigative Detention

A compelled, brief, & investigatory stop

• in appropriate circumstances & in an appropriate manner, an officer may approach a person & detain them for purpose of investigating possible criminal behavior even through PC has yet to be established

Terry v. Ohio (USSC 1968)

Case: A police officer observed Terry and another man repeatedly walking back and forth in front of a store and believed they were preparing to commit a robbery. The officer stopped them, conducted a quick pat-down for weapons, and discovered a handgun on Terry.

Holding: The Supreme Court held that officers may briefly detain a person and conduct a limited frisk for weapons without probable cause when they have reasonable, articulable suspicion that criminal activity is occurring and that the person may be armed and dangerous.

Two Principles that come from this case:

1. frisk / pat-down (weapons only)

2. reasonable suspicion

Using rationale from _____, an officer may detain an individual based upon the officer’s _________, _________ suspicion that criminal activity was being planned or was in the process of being executed.

Terry; reasonable; articulable

What are two considerations an officer should be mindful of when making a Terry stop?

1. Use the least intrusive means of detention & investigation reasonably available that will achieve the goal

2. Conduct the business of the stop as quickly as possible so as to not prolong the period of involuntary detention

   1. If, during the detention, additional facts are uncovered that supply the officer with probable cause to arrest, the individual may be arrested

   2. If grounds for an arrest are not discovered in a reasonable amount of time, the detainee must be released amount of time, the detainee must be released or the encounter risks becoming a de facto arrest

When courts review a claim of reasonable suspicion, they tend to place great weight on factors collateral to the suspect’s behavior. The more ______ present, the more likely ________ _________ will be found.

factors; reasonable; suspicion

_____-____ rules are not realistic. A determination of reasonable suspicion will depend on the specific ____ surrounding a particular stop & how those interplay with one another

bright-line; facts

What are the five factors used in determining totality of circumstances?

1. Time & location (of day, crime scene, or escape route)

2. High crime area (not sufficient by itself by USSC)

3. Suspect’s criminal history

4. Suspect’s demeanor & actions (nervousness & flight)

5. Law enforcement & official sources (informants)

What two specific pieces of information must an informant provide law enforcement to be sufficient?

1. information on the crime

2. information on the suspect

The greater weight given to an identified informant is due to the _____ & the informants _________, the basis of their knowledge, & their motivation are more clearly evident.

facts; identity

Informant

someone who furnishes information for a reason other than being just a good citizen (ex. Immunity or lighter sentencing)

Are informants presumptively reliable?

No

What two considerations regarding anonymous tips will be considered part of the totality of circumstances?

1. method of contact

2. duration of contact

Aguiliar v. Texas (USSC 1964)

Case: Police obtained a search warrant based mainly on an informant’s tip that Aguilar possessed narcotics in his home. The affidavit, however, gave little information about how the informant knew this or why the informant was reliable.

Holding: The Supreme Court held that when using an informant’s tip to establish probable cause, officers must show both the informant’s basis of knowledge and the informant’s credibility or reliability, creating the two-pronged Aguilar test.

Two-pronged Aguiliar test:

1. Reliability of the informant

2. Reliability of the information (can overcome the informant)

Spinelli v. US (USSC 1969)

Case: The FBI used information from an informant, along with surveillance, to obtain a search warrant against Spinelli for illegal gambling activities.

Holding: The Supreme Court ruled that an informant’s tip alone is not enough for probable cause unless officers show the informant’s reliability/credibility and the basis of the informant’s knowledge, reinforcing the Aguilar two-prong test.

Gates v. Illinois (USSC 1983)

Case: Police received an anonymous letter claiming the Gates couple was trafficking drugs and used an independent investigation to verify parts of the tip before obtaining a search warrant.

Holding: The Supreme Court held that probable cause involving informants should be evaluated using the “totality of the circumstances” test rather than the strict Aguilar-Spinelli two-prong test.

Totality of circumstances test

A method of analysis where decisions are based on all available information rather than “bright-line” rules. Under the TOC test, courts focus “on all the circumstances of a particular case, rather than just one factor.”

Factors:

Conduct of the suspect

1. Criminal or suspicious behavior

2. Flight from officers

3. Persons associated with known criminals are not a basis for arrest

Navarette v. California (USSC 2014)

Case: Police received a 911 call reporting that a specific truck had run the caller off the road, and officers stopped the vehicle and discovered marijuana inside.

Holding: The Supreme Court held that the anonymous 911 tip provided reasonable suspicion for the traffic stop because the report was sufficiently reliable under the totality of the circumstances.

What are the four permitted procedures for investigative stops?

1. Requests for ID & questioning are the two most common techniques used during investigative stops

2. Miranda warnings are not necessary because we haven’t established probable cause

3. Subjects are not required to answer questions & their refusal to do so are not grounds for arrest (5th amendment violation)

4. Subjects detained in a public place must provide their name, address, and date of birth if an officer reasonably suspects the subject…

   1. ORC 2921.29 Failure to Disclose Personal Information

What are the two NOT permitted procedures for investigative stops?

1. Any significant movement of the subject

   1. Moving to a secondary location is permitted for a very few limited reasons (safety)

      1. If poor weather, take them a couple blocks up the road to better conditions (only short distance)

2. Searching detainees for evidence or anything besides a weapon unless voluntary consent is given

Does the desire for officer safety supersede the requirements for a Terry frisk?

No. Under Terry v. Ohio, officer safety alone does not automatically justify a frisk. An officer must still have reasonable, articulable suspicion that the person is armed and dangerous before conducting a Terry frisk.

What are the two requirements that must be established before a Terry pat down/frisk is conducted?

Officers are required to articulate a reasonable belief that…

1. The subject is armed AND

2. The subject poses a threat to them

State v. Evans (OSC 1938)

Case: An officer stopped Evans for a traffic violation and conducted a pat-down after observing suspicious movements and concerns for officer safety, leading to the discovery of drugs.

Holding: The Ohio Supreme Court held that during a lawful traffic stop, officers may perform a protective frisk when they reasonably believe the suspect may be armed and dangerous, emphasizing officer safety during investigative detentions.

Plain Feel Doctrine

1. While an officer may not search for objects other than weapons on a Terry stop, if the officer physically feels an object that the officer immediately recognizes as contraband, the object may be seized even if the officer knows it is not a weapon

   1. This only applies when the identity of the object is immediately apparent to the officer from its shape & the way it feels

   2. When the incriminating nature of the object is immediately apparent, seizing it does not invade the subject’s privacy beyond what is allowed in a Terry frisk

2. The officer may not seize an object that, unmistakably, is not a weapon, or if determining its identity, requires further manipulation

   1. When determining if an object requires further manipulation (ex. Going into pockets, repeatedly squeezing the object), an additional invasion of privacy is necessary

   2. This action is not permitted during a Terry frisk

3. Once it is determined that an object is not a weapon, the search must stop unless there is a warrant, probable cause for arrest, or consent

Terry Frisk of a Motor Vehicle

1. Permitted to search the entire passenger compartment & any unlocked containers in which a weapon could be concealed

2. Seize any weapons in plain view

3. Seize any contraband, other than weapons, that the officer discovers during the course of the search for weapons

4. Length of Duration

   1. No hard & fast rule

   2. Must not be longer than necessary to fulfill its purpose

   3. No more intrusive than needed to verify or dispel suspicions

   4. Officers must be able to justify the duration

   5. Unreasonably lengthy detentions turn into de facto arrests

Miranda Warnings

1. When custody & interrogation are clearly present, Miranda must be advised

2. Custody occurs when a reasonable person would feel that they are not free to leave

3. Interrogation occurs when an officer asks investigative questions that the officer should know are reasonably likely to elicit an incriminating response

4. When in doubt, read Miranda

5. Miranda Requirements

For non-seizures with voluntary contact under a hunch, is Miranda required?

No

For a seizure from an investigatory stop with reasonable, articulable suspicion, is Miranda USUALLY required for interrogation?

No

For a seizure from an arrest with probable cause, is Miranda required for interrogation?

Yes