Criminal Procedure

1. Criminal Procedure Class Three

2. ARREST AND THE WARRANT CLAUSE

3. Basic Concepts • Arrest = seizure under 4th Amendment • Not all custodial arrests require warrant • However, all custodial arrests require probable cause • PROBABLE CAUSE IS LYNCHPIN

4. Why Should We Care? • Invalid arrest does not render continued confinement unlawful • Invalid arrest in and of itself does not void resulting conviction • Query: Why is the validity of arrest important for Defendant?

5. Arrest in Public • Query: Is warrant required to make valid arrest in public for felony offense? • Must officers demonstrate “exigent circumstances” [some emergency-type situation]?

6. Exercise • Assume: You are a police officer. Why get an arrest warrant if you don’t have to? Why not just wait for your suspect to put in an appearance on the street? • Task: ID at least 3 reasons

7. Excessive Force • Can how an arrest is made (the force used) violate 4th Amendment?

8. Excessive Force • Reasonable inquiry • depends on circumstances • objective standard • Factors • severity of crime • whether immediate threat • whether actively resisting

9. Relief & Protections • If officer arrests someone in public without a warrant, how do we ensure that the arrest was in fact based on probable cause?

10. Determining “promptness” • Probable cause hearing 0-48 hours • presume OK • no systemic challenge • can still show individual challenge • Hearing 48+ hours • burden shifts to gov’t

11. Arrests at Home • Do police need arrest warrant enter home to make arrest? • Distinguish • “routine” vs. exigent • consentual

12. Arrests at Third Party’s Home • What documents gets police across the threshold? • What document authorizes taking suspect into custody? • Can arrested person challenge authority of police to enter 3rd party’s home?

13. Resident v. Guest v. On Premises • Your status in your home • Your status as overnight guest in someone else’s home • Your status as someone “on the scene”

14. Material Witness • General test: arrest & detain OK if impracticable to secure presence by subpoena • Most states lack statutory limit on length of detention • No constitutional right to $$$ compensation

15. STOP AND FRISK

16. Terry Doctrine • “Stop and Frisk” • Seizure • Search

17. When “seized”? officer accosts and restrains freedom to walk away Less than arrest Detention Limited in duration How “searched”? pat down Frisk Less than full search Scope: weapons purpose: officer protection Terry v. Ohio

18. Terry’s Balancing Test • Gov’t need for S/S • vs. • Degree of invasion

19. Terry Test • Reasonable suspicion • Less than probable cause • so less than needed for arrest • Objective • More than “inarticulate hunch”

20. Terry Applications

21. Sources of Information • Tip or personal information permissible • Could be less than needed to show probable cause for either: • full blown search • arrest

22. Drivers Passengers Bright Line Rule Routine Traffic Stops

23. Occupants of Residence • Conduct: police require occupants to remain while search warrant executed • Always Reasonable

24. Encounter/Stop Distinction

25. Sliding Scale EncounterSeizureArrest NothingReas. Susp.P.C.

26. Encounter, Stop, or Arrest? • If police/civilian interaction is “encounter” rather than stop, it is completely outside 4th Amendment. It needs no justification. • Terry stop requires reasonable suspicion • Arrest requires probable cause

27. Encounter: “Free to Leave” Test • Mendenhall test • Person “seized” only if, in view of all circumstances surrounding, a reasonable person would have believed he was not free to leave • Objective test

28. Airport Encounters • Officer conduct • Approaching individual on street or public place • Asking if willing to answer questions • Putting questions to him

29. Airport Encounters • Civilian Options • Need not answer • Decline to listen & walk away

30. Airport Encounters, con’t • What legal impact if civilian walks away? • May NOT be detained, even momentarily, without reasonable, objective grounds • Refusal to listen, without more, does not provide that reasonable suspicion

31. Factory Sweeps • Held no “seizure” despite fact guards were posted at doors … walkie-talkie … badges …. approached at work station and asked questions about citizen. • Query: How does this fit with Mendenhall free to leave test?

32. Bus Sweeps • Facts: Uniformed officers board a stopped bus, asked to inspect passenger’s ticket & ID … explain looking for illegal drugs … ask for consent to search luggage

33. Bus Sweeps • Query: How does this fit with Mendenhall free to leave test? • Consider: Bostick; Drayton -- When is a bus sweep a seizure?

34. Impact of Officer Intent • Should it make a difference whether officer intended to terminate person’s freedom of movement or if her conduct merely had that effect?

35. Refusal to Submit • Seizure in this context means taking possession • Two types of “seizure”: • officer has physically touched OR • submission to assertion of authority • Major modification of Mendenhall free to leave; must show more

36. Role of Flight • Sudden flight can create reasonable suspicion justifying Terry stop • No per se rule

37. Grounds for Terry Stop • Can anonymous tip provide reasonable suspicion? • “Sufficiently corroborated” -- as to what factors: illegality or heavily predictive

38. Profiles • Race • Drug courier

39. Limits on Terry Searches • Only justifiable for protective purposes • Does not permit search for evidence

40. Terry Searches Beyond the Person • “Protective Sweep” of car • Other persons • “Protective Sweep” of premises

41. STOP VS. ARREST • Forced Movement • Identification • Interrogation • Temporal Limits • Show of Force

42. Detention of Property • Can Terry’s temporary detention apply to things as well as people?