CLASS NO. 6 (1)

CLASS NO. 6 ARRESTS

REVIEW

Search Approach

  • Step 1: Is it a search?

  • Step 1A: Was it a government or private search?

  • Step 2: Was there probable cause?

  • Step 3: Was there a good warrant?

  • Step 4: Was there an exception to warrant rule?

SEIZURES & ARRESTS

Three Topics

  • Arrests: Lengthy seizure.

  • Terry stops: Temporary detentions.

  • Consensual Encounters: Not seizures.

Approach

  • Was it a seizure?

  • What kind of seizure was it?

  • Was there the proper level of suspicion?

  • What can the police do during that type of seizure?

Arrests

Fundamental Requirements

  • Require probable cause.

Types of Arrests

  • Public Arrests (Watson):

    • No warrant needed.

    • Applies to any felony or misdemeanors witnessed by officers.

  • House Arrests:

    • Require an arrest warrant or exception (e.g., hot pursuit) (citing Payton; Warden v. Hayden).

Protection Against Improper Arrests

  • Riverside v. McLaughlin:

    • Must present complaint to a judge within 48 hours of arrest (absent extraordinary circumstances).

    • A judge conducts a “Gerstein” review.

Alternative to Arrest

  • Summons to Appear in Court

Use of Force During Arrest

  • Reasonableness Standard:

    • Depends on circumstances of the case (citing Graham v. Connor).

    • Deadly force cannot be used if no threat from the felon (citing Tennessee v. Garner).

Encounters with Police

Types of Encounters

  • Arrest

  • Temporary Detention

  • Consensual Encounters

Nature of Seizures

  • Require probable cause (P/C)

  • Reasonable suspicion (R.S.)

  • Not a seizure with no suspicion

Consensual Encounters

  • United States v. Mendenhall:

    • Not considered a seizure if a reasonable person feels free to leave.

    • All factors considered; no need to inform of the right to leave.

Not Considered Seizures

  • Airports (citing Mendenhall)

  • Street encounters

  • Bus sweeps (citing Florida v. Bostwick and Drayton)

Automobile Passengers

  • Brendlin (2007):

    • Passengers are usually considered "seized" along with drivers.

Police Chases

  • California v. Hodari:

    • A police chase does not constitute seizure without some type of physical restraint.

    • Defendants were not yet restrained.

Torres v. Madrid (2021)

  • A seizure occurs when physical force is applied to a person with the intent to restrain that person.

What Crimes Can Police Arrest For?

  • Atwater v. City of Lago Vista:

    • Arrests are allowed for misdemeanor offenses even if only punishable by a fine.

    • Subjective intent of the officer is irrelevant.

Virginia v. Moore

  • Arrests that violate state law still comply with 4th Amendment if there is probable cause for the offense.

    • States can establish their own exclusionary rules.

SEIZURES - STOP AND FRISK

TERRY STOPS

Temporary Detentions

  • Terry v. Ohio (C.J. Warren, 1968):

    • 4th Amendment allows for “stop and frisks.”

    • Requires reasonable suspicion, not probable cause.

    • Must detail “specific and articulable facts” (more than a hunch).

    • Only pat down for weapons allowed (requires suspicion of danger).

Implications of TERRY

  • 4th Amendment is not “all or nothing”:

    • Conceptual hierarchy from arrests ➔ Terry stops ➔ encounters (P/C, reasonable suspicion, no requirement).

    • Deference to law enforcement may lead to potential abuses.

Actions During Terry Stops

Proper Actions

  • Pat down suspect.

  • Request identification.

  • Inspect the area of the car accessible to the driver.

  • Conduct protective sweep of the house.

Improper Actions

  • Performing a full search for evidence.

  • Searching areas outside of the suspect’s access.

  • Lengthy detention.

  • Involuntarily taking suspects to the stationhouse.

Reasonable Suspicion

Evaluation Criteria

  • Street Level (Terry v. Ohio):

    • Consider totality of circumstances.

    • Evaluate suspect's actions and police experience.

Reasonable Suspicion for Stopping Automobiles

  • U.S. v. Arvizu (2002):

    • Do not examine each factor independently; assess as a whole.

    • Must be more than a hunch; less than probable cause.

Kanas v. Glover (2020)

  • Police had reasonable suspicion to stop a car because the registered owner's license was revoked.

    • Basic principles: more than a hunch, reliant on common sense and officer experience.

Reasonable Suspicion Based on Informant’s Tips

  • Alabama v. White (1990):

    • Requires less information and reliability than probable cause; anonymous tips accepted if they predict future action.

Anonymous Tips

  • Florida v. J.L. (2000):

    • Requires predictive capability; the court rejected the notion of a “firearm exception.”

Vehicle Stops and Anonymous Tips

  • Navarette v. Calif. (2014):

    • Reasonable suspicion can arise from an anonymous 911 call based on the totality of circumstances.

Reasonable Suspicion Based on Flight

  • Illinois v. Wardlow (2000):

    • Suspect’s flight can be sufficient for reasonable suspicion to justify a stop.

Reasonable Suspicion Based on Profiling

  • U.S. v. Sokolow:

    • Profiling is permissible; certain aspects can constitute reasonable suspicion.

Impact of Racial Profiling

  • SKIN COLOR IS NOT REASONABLE SUSPICION.

  • Racial profiling is not criminal.

Discussion Issues

  • Define racial profiling and discuss its use and harmful effects.

  • Consider legality of police stops based on suspected illegal immigration.

  • Discuss using racial profiling in national security contexts.

  • Evaluate legal system's response to racial profiling.

What is “Reasonable Suspicion”? (Totality of Circumstances)

  • Criteria include:

    • Suspicious activity.

    • Common sense inferences.

    • Officer’s experience.

    • Predictive anonymous tips.

    • Suspect flight.

    • Driving behavior.

    • Location of the suspect.

    • The suspect’s clothing.

Police Actions During Terry Stop

  • Permitted Actions:

    • Brief detention to talk to the suspect.

    • Ask for ID.

    • Pat down/frisk for weapons.

    • Check nearby areas for weapons.

ELECTRONIC SURVEILLANCE & EXCESSIVE POLICE FORCE

WIRETAPPING

Wiretapping Distinctions

  • Different from consensual monitoring; neither party is aware of government listening.

  • Berger (1967): Must provide sufficient procedural protections as per 4th Amendment.

“Title III” Wiretaps

  • Omnibus Crime Control and Safe Streets Act of 1968:

    • Requires a wiretap order, probable cause, and proof of thwarted traditional techniques.

    • Must comply with 30-day limits and reporting to the court.

National Security Wiretaps

  • FISA Warrants:

    • Significant focus on foreign intelligence gathering; can include roving wiretaps.

  • Presidential orders for wiretaps do not need probable cause or court supervision.

EXCESSIVE POLICE FORCE

Use of Force Considerations

  • Reasonableness Standard:

    • Varies based on case specifics (citing Graham v. Connor).

    • Deadly force should not be used if there is no threat posed by the felon (citing Tennessee v. Garner).