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Criminal Procedure. Class Three. ARREST AND THE WARRANT CLAUSE. Basic Concepts . Arrest = seizure under 4th Amendment Not all custodial arrests require warrant However, all custodial arrests require probable cause PROBABLE CAUSE IS LYNCHPIN. Why Should We Care?.

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Presentation Transcript
basic concepts
Basic Concepts
  • Arrest = seizure under 4th Amendment
  • Not all custodial arrests require warrant
  • However, all custodial arrests require probable cause
why should we care
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?
arrest in public
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]?
  • 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
excessive force
Excessive Force
  • Can how an arrest is made (the force used) violate 4th Amendment?
excessive force1
Excessive Force
  • Reasonable inquiry
    • depends on circumstances
    • objective standard
  • Factors
    • severity of crime
    • whether immediate threat
    • whether actively resisting
relief protections
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?
determining promptness
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
arrests at home
Arrests at Home
  • Do police need arrest warrant enter home to make arrest?
  • Distinguish
    • “routine” vs. exigent
    • consentual
arrests at third party s home
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?
resident v guest v on premises
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”
material witness
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
terry doctrine
Terry Doctrine
  • “Stop and Frisk”
  • Seizure
  • Search
terry v ohio
When “seized”?

officer accosts and restrains freedom to walk away

Less than arrest


Limited in duration

How “searched”?

pat down


Less than full search

Scope: weapons

purpose: officer protection

Terry v. Ohio
terry s balancing test
Terry’s Balancing Test
  • Gov’t need for S/S
  • vs.
  • Degree of invasion
terry test
Terry Test
  • Reasonable suspicion
  • Less than probable cause
    • so less than needed for arrest
  • Objective
  • More than “inarticulate hunch”
sources of information
Sources of Information
  • Tip or personal information permissible
  • Could be less than needed to show probable cause for either:
    • full blown search
    • arrest
routine traffic stops


Bright Line Rule

Routine Traffic Stops
occupants of residence
Occupants of Residence
  • Conduct: police require occupants to remain while search warrant executed
  • Always Reasonable
sliding scale

Sliding Scale


NothingReas. Susp.P.C.

encounter stop or arrest
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
encounter free to leave test
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
airport encounters
Airport Encounters
  • Officer conduct
    • Approaching individual on street or public place
    • Asking if willing to answer questions
    • Putting questions to him
airport encounters1
Airport Encounters
  • Civilian Options
    • Need not answer
    • Decline to listen & walk away
airport encounters con t
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
factory sweeps
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?
bus sweeps
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
bus sweeps1
Bus Sweeps
  • Query: How does this fit with Mendenhall free to leave test?
  • Consider: Bostick; Drayton -- When is a bus sweep a seizure?
impact of officer intent
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?
refusal to submit
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
role of flight
Role of Flight
  • Sudden flight can create reasonable suspicion justifying Terry stop
  • No per se rule
grounds for terry stop
Grounds for Terry Stop
  • Can anonymous tip provide reasonable suspicion?
  • “Sufficiently corroborated” -- as to what factors: illegality or heavily predictive
  • Race
  • Drug courier
limits on terry searches
Limits on Terry Searches
  • Only justifiable for protective purposes
  • Does not permit search for evidence
terry searches beyond the person
Terry Searches Beyond the Person
  • “Protective Sweep” of car
  • Other persons
  • “Protective Sweep” of premises
stop vs arrest
  • Forced Movement
  • Identification
  • Interrogation
  • Temporal Limits
  • Show of Force
detention of property
Detention of Property
  • Can Terry’s temporary detention apply to things as well as people?