Constitutional Law

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Constitutional Law

• Arrest, Search, and Seizure

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• Questions of arrest, search, and seizures
  generally fall into one of four categories
• Arrest with a warrant
• Arrests without a warrant
• Searches with a warrant
• Searches without a warrant

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Arrests with a warrant

• Victim signs a complaint
• An arrest warrant is issued
• Arrest warrants may be served day or night
• Gaining entry to serve an arrest warrant will
  depend on if the crime is misdemeanor or felony

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• Felony warrants carry the authority to make a
  forced entry. (Payton v. New York)
• Misdemeanor warrants do not allow forced entry.
• Consider using other laws, hindering prosecution.
• Third party premises require a search warrant as
  well as the arrest warrant.

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Arrests without a warrant

• Based on Probable cause
• Crime need not occur in the officers presence
• Applies to misdemeanors as well as felonies
• Majority of arrests are made this way

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Searches with a Warrant

• Search is a governmental intrusion into a
  persons reasonable and justifiable expectation
  of privacy
• Seizure is control by government over a person or
  thing
• Normally, searches must be conducted pursuant to
  a warrant

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Search Warrant

• Application
• Affidavit
• Warrant
• Return / inventory

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• 4th Amendment requirement-searches and seizures
  must be reasonable if a warrant is issued it must
  be
• Based on probable cause
• Supported by oath or affirmation,
• Particularly describing what is to be searched
  for and seized.

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Levels of Proof

• An officers actions must be based on the law.
  The higher the level of proof the more intrusive
  the officers actions can be.
• Suspicion initiate an investigation
• Reasonable suspicion investigative
  detention

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• Probable cause arrest and or search
• Preponderance of evidence civil verdict
• Proof beyond a reasonable doubt guilty verdict
  in a criminal case

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Probable Cause

• Facts or circumstances which cause a person of
  reasonable caution to believe that a crime is
  being or has been committed, or that evidence of
  a crime can be found in a particular place.

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Probable Cause

• Probable cause exists where the facts and
  circumstances within the knowledge of the
  arresting officers, and of which they had
  reasonably trustworthy information are sufficient
  in themselves to warrant a man of reasonable
  caution in believing that an offense has been or
  is being committed.

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• (in the case of arrest warrants) or that property
  could be found in a particular place or on a
  particular person (in the case of search
  warrants). Carroll v. U.S. 267 U.S. 132 (1925)

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How probable cause is established

• Officers knowledge of particular facts and
  circumstances or knowledge obtained by the
  officer.
• Use of the five senses sight, hearing, smell,
  feel, (taste?)
• Officers may consider several factors when
  determining if PC exists

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Factors

• Suspects prior criminal record
• Flight from the scene
• Highly suspicious conduct
• Admission by the suspect
• Presence of incriminating evidence
• Resemblance of a suspect to a description of a
  perpetrator

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Information provided by a third party (hearsay)

• Aguilar v. Texas. 378 U.S. 108 (1964)
• Established the two pronged test
• Established the credibility of the informant and
• The reliability of the informants information.

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Informant reliability

• Put their name in the affidavit
• Statement against penal interest
• Track Record
• Informant has given accurate information in the
  past

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Reliability of the information

• Informant has seen the evidence or heard the
  statement recently
• Both prongs had to be satisfied.
• Police may corroborate the information,
  (Spinelli v. U.S. 1969)
• Use surveillance, record checks, utility bills,
  other informants

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Illinois v. Gates

• 462 U.S. 213 (1983)
• Applied the totality of the circumstances test
  to probable cause,
• Magistrate must consider totality of the
  circumstances when deciding if probable cause
  exists

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Searches without a warrant

• Searches conducted without a warrant are
  unreasonable unless they fall under on of the
  exceptions to the warrant requirement.
• The exceptions are
• Search incident to a lawful arrest
• Vehicle (automobile)
• Stop and frisk

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• Plain view seizure
• Consent
• Public school lockers
• Open fields
• Inventory / Impound searches
• Abandonment
• Hot pursuit

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Search incident to arrest

• At the time of a lawful arrest officers may
  search the arrestees person and the area within
  his reach or wingspan
• Search must be contemporaneous with the arrest,
  delays must be reasonable
• Occupants of a vehicle

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• The police may conduct a warrantless search of
  the passenger compartment of a vehicle (including
  its contents) after arresting the occupants. By
  definition the entire passenger compartment
  (glove compartment and console) are within the
  wingspan when that person is validly arrested
  in an automobile, even if he

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• Could no longer reach into the interior
  compartment of the car when the search is
  undertaken (e.g. handcuffed) New York v. Belton,
  453 U.S. 454, (1981)
• What about locked containers?

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• The interior of the vehicle may be searched
  incident to arrest
• Trunk may not be searched incident to arrest

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Vehicle searches

• Probable cause requirement Before beginning any
  search at all under the automobile exception, the
  police must have probable cause to believe that a
  moving vehicle, or a temporarily stopped vehicle,
  contains the fruits, instrumentalities,
  contraband or evidence of crime.
• (Carroll v. U.S., 1925) Carroll Doctrine

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Vehicle searches

• Vehicles may be searched without a warrant if the
  officer has probable cause to believe that
  evidence can be found inside.
• Lower expectation of privacy requirement This
  exception applies only to automobiles, mobile
  homes, boats and airplanes, as to which the
  Supreme court has held that citizens have a
  lesser expectation of privacy than their homes,
  offices and personal property (e.g. luggage or a
  foot locker).

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• The exception also applies to motor homes because
  they generally possess same attributes of
  mobility as automobiles (Ca. v. Carney, 1985)
• Mobility requirement The exigency of the
  automobiles mobility excuses the officers
  failure to secure a warrant and justifies the
  warrantless search of the entire automobile
  (interior compartment and trunk) Carroll v. U.S.

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• Containers found in the vehicle when the police
  have the probable cause to justify a warrantless
  search of the automobile they may search the
  entire car and open any packages or luggage found
  there which could reasonably contain the items
  for which they have probable cause to search
  (U.S. v. Ross)

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• The elephant in the matchbox rule
• Search need not be contemporaneous If the police
  could have conducted a warrant less search of the
  vehicle when the vehicle was stopped, the vehicle
  may be towed to the police station and searched
  at a later time. (Chambers v. Maroney, 1970).

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Stop and Frisk

• Also called investigative detention or Terry
  Stops
• Level of proof required reasonable suspicion
• Stop and frisk are two separate issues
• Stop must be based on an articulable, reasonable
  suspicion

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• Frisk must be based on a reasonable suspicion
  that a suspect may be armed and presently
  dangerous. Also called a pat down and is
  limited to checking for weapons. The frisk is
  limited to the outer clothing for weapons.
• Plain feel rule (Minnesota v. Dickerson)

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• Terry v. Ohio (1968) Established standard for an
  investigative detention
• Adams v. Williams (1972) held that reasonable
  suspicion could be established by information
  provided by an informant
• U.S. v. Cortez (1981) applied the totality of the
  circumstances test for establishing reasonable
  suspicion

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• Pennsylvania v. Mimms Stop for a traffic
  violation once a lawful stop of a vehicle has
  been made for a traffic violation the officer may
  order the driver out of the car for safety.
  Conversely they may order the occupants to stay
  in the vehicle.

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• Michigan v. Long defined the scope of the frisk
  how extensive can it be?
• Whren v. U.S. dealt with pre textual stops
  (1996), as long as there is legal justification
  for the stop, even a minor infraction the stop is
  justified.
• Profiling is an old police practice.

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Consent Exception

• General rule A search may be conducted without a
  warrant if a voluntary and intelligent consent is
  given. (Schneckloth v. Bustamonte)

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• Knowledge of the right to refuse is not required
  it is not a prerequisite to proving that an
  intelligent consent has been given for the person
  giving consent to know of the right not to give
  consent. This is only a factor to be considered
  by the judge. (Schnekcloth)

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• Scope of the search the scope of the search may
  be limited by the scope of the consent. Consent
  may be revoked at any time in which case the
  search must stop.

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• Capacity to consent Any person with an equal
  right to use or occupy the property may consent
  to a search, and any evidence found may be used
  against the other occupants. (Frazier v. Cupp,
  1969, U.S. Matlock, 1974)

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Plain view Seizures

• Prior lawful intrusion, including
• Car Stop
• Entering a structure on another matter
• Service of a warrant
• Administrative duties
• Inadvertent discovery
• Item must be immediately recognized as the
  fruits, instrumentalities, evidence of a crime or
  contraband

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Abandonment

• Individuals have no expectations of privacy in
  items they discard
• Trash searches
• Motel rooms
• Dropsy cases

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Inventory searches

• Sometimes called impound searches
• These searches are not for evidence
• When the officers seize an item they become an
  involuntary bailee which they are responsible
  for the item
• Inventory searches are to protect the officer,
  the department and the person whose property was
  seized

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• Inventory searches must be conducted in the same
  way each time, usually pursuant to a department
  standard operating procedure (SOP).
• Usually occur when booking a prisoner or seizing
  a car in a DWI

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Open Fields

• Persons have no reasonable expectation of privacy
  in an open field
• Open fields are areas outside the curtilage.
• Curtilage is an area for the exclusive use of the
  occupants

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Other exceptions

• Public school lockers
• Hot pursuit
• Protective Sweeps