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Criminal Procedure - Outline Part 13

By Collin B. Hardee

Download the PDF version of this outline

<< Part 12 | Part 14 >>

  • Frisk Permissible under Terry Terry indicates that where the officer wishes to conduct a frisk in connection with a stop, he must follow a two-step process:
    1. must first merely pat down the outside of the suspect’s clothing, to feel for hard objects which might be weapons; and
    2. only if he feels such an object may he reach inside a pocket or article of clothing.
      • Limited Purpose of Frisk → when the frisk does occur, it must be limited to the search for weapons, i.e., item which could not be weapons may not be examined, and areas not within the control of the suspect may not be searched
        • E.g.) If an officer is searching for a weapon and feels something that reasonable could be contraband, the officer may not expand the search (remove the object) unless he already has probable cause to believe that the object is contraband
      • “Plain Touch” Doctrine Applies During Frisk → under the Plain View doctrine, once the police legally view an object and recognize it to be contraband or evidence, they may seize it without warrant. A Plain Touch variant applies during a Terry frisk, so that if the officer, while staying within the narrow limits of a frisk for weapons, feels what he has probable cause to believe is a weapon, contraband or evidence, the officer may expand the search or seize the object
  • Reason to Fear Danger – even if a Terry stop is justified, the frisk may take place ONLY IF the officer has a reasonable belief that the suspect may be armed. A reasonable belief that the suspect has contraband, or that a frisk will turn up evidence of criminality, is not sufficient to frisk

The ”Terry Doctrine” After a Crime has been Committed → US v. Hensley (1985) – the Terry doctrine applies under circumstances in which the police believe “crime was afoot,” as well as, when an officer seeks to investigate a completed felony: Stops are allowed if the “police have a reasonable suspicion, grounded in specific and articulatable facts, that a person they encounter was involved in or is wanted in connection with a completed felony.”

Pat-Downs
  • In Minnesota v. Dickerson, the Minnesota SC stated that the officer determined that the lump was contraband only after “squeezing, sliding, and otherwise manipulating the contents of the defendant’s pocket” – a pocket which the officer already knew contained no weapon. . . It is clear that the police officer overstepped the bounds of the “strictly circumscribed” search for weapons allowed under Terry.
    • The officer’s continued exploration of the suspect’s pocket after having concluded that it contained no weapon was unrelated to “the sole justification of the search under Terry: the protection of the police officer and others nearly.” It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize
When the Purpose of the Seizure Changes: Traffic Stops That Becomes Something More
  • In determining whether the seizure and search were “unreasonable” our inquiry is a dual one:
    1. whether the officer’s action was justified at its inception; and
    2. whether it was reasonably related in scope to the circumstances which justified the interference in the first place
  • May a police officer temporarily detain a person lawfully on a traffic violation, and then use the opportunity to conduct an investigation unrelated to the reason for the original detention?
    • In Rodriguez v. US (2015) – a routine traffic stop is comparable to a brief Terry seizure
      • As part of such a stop, ordinary inquiries incident to a traffic stop, e.g., checking the driver’s license, determining whether there are any outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance – are permitted
      • In this case, all of these permitted procedures were done before the dog was brought to the scene – this latter process “prolonged the time reasonably required to complete the mission” of issuing the warning ticket
      • The “reasonableness of a seizure depends on what the police in fact do. The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether the conducting the sniff ‘prolongs’, i.e., adds time to the stop”
“Terry Seizures” Versus De Facto Arrests

Brief Detention at the Station – Terry and Adams, in holding that a 4th Amendment seizure might sometimes be permissible on less than probable cause, i.e., reasonable suspicion, spoken only of on-the-street encounters.

  • If the suspect is required to come to the police station, the Terry/Adams rationale will NOT apply
  • The line dividing a Terry-stop from an intrusion so severe that the full protection of the 4th Amendment is triggered, is “crowed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” Hayes v. Florida (1985)
    • Such station-house detention, even though brief and unaccompanied by interrogation, is “sufficiently like an arrest to invoke the traditional rule that arrests may be constitutionally be made only on probable case.”

Lack of Actual Arrest Irrelevant – Dunaway v. NY (1979) → Probable cause is necessary for a station-house detention accompanied by interrogation, even if no formal arrest is made

  • Insofar as the defendant was taken into custody, the intrusion on his privacy was much more severe than an on-the-street stop, and that the situation should therefore not be handled under the Terry “balancing test” approach
  • Instead, probable cause was required, and since it was lacking, the confession was the tainted fruit of an invalid seizure
  • The mere fact that the defendant was not told he was under arrest, was not “booked”, and would not have had an “arrest record” had the investigation proved fruitless, did not prevent the seizure from being serious enough to require probable cause
    • Fingerprinting – the rationale for Terry will NOT allow the police, acting without probable cause, to require a suspect to come to the station for fingerprinting (Hayes v. Florida)
Moving Suspects
  • Florida v. Royer (1983) → (officer moves individual suspected of trafficking marijuana into an interrogation room) an interaction that begins as a consensual inquiry in a public place cannot be escalated into an investigatory procedure in a police interrogation room under mere suspicion of criminal activity
    • Any consensual aspects of an encounter are evaporated if the suspect reasonably believed that he was being detained and was not free to leave, i.e., the suspect is de facto arrested
  • Pennsylvania v. Mimms (1977) → (officer asks suspect to exit vehicle without probable cause then sees a bulge of a gun) → Balancing the competing interests, when an officer legally stops a driver on the highway, he may order the driver out of the car without further justification
    • “The additional intrusion of getting out of the car can only be described as de minimis (too minor). The driver is being asked to expose very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained: the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it.”
  • Maryland v. Wilson (1997) → (can officer order a passenger out of the car at stop?) – Again, balancing officer safety vs personal liberty, since innocent passengers are inevitably seized when the driver is stopped, this change in circumstances (i.e., being ordered out of the car) was again too minor an additional intrusion to outweigh police safety
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